Olympics Copyright Insanity Rules Again: Gold Medal Winner Blocked From Sharing Her Own Victory

from the the-olympic-gold-in-copyright-abuse-goes-to dept

Elaine Thompson-Herah of Jamaica won both the women's 100 meter and 200 meter gold medals at the Olympics this year, and then did the super piratey thing of... excitedly posting snippets of her victories to Instagram, which responded by blocking her account for copyright violations. She wrote the following in a now deleted tweet:

“I was blocked on Instagram for posting the races of the Olympic because I did not own the right to do so."

We've already talked about the inanity of the way the Olympic Committee (and various broadcasters) abuse copyright to shut down viral moments, but this latest story really drives home a separate point: how copyright is not protecting the actual people who are entertaining the public. It is only being used to protect the giant organizations who profit from them.

After lots of people expressed reasonable outrage at this clearly ridiculous abuse of copyright law, Facebook claimed that it was all a mistake and her account was reinstated:

A spokesperson for Facebook told Reuters news agency that while the content had been removed, the suspension had been wrongly applied.

However, the International Olympic Committee seems to be insisting that Facebook did exactly the right thing:

“Rights Holding Broadcasters (RHBs) have the exclusive rights to broadcast the Olympic Games,” the IOC told Reuters.

“This includes distribution on social media, where athletes are invited to share the content provided by the RHBs on their accounts but cannot post competition content natively. Should that occur, the removal of such content from social media platforms happens automatically.”

The IOC says that enforcing its intellectual property ensures it can redistribute as much money as possible back into sport.

Yeah, right. The fact that a top athlete shared her own victories on social media does not take away any money from anyone. If anything it gets people more interested in the sport. Or, really, more interested in the athlete -- but the IOC can't have that, because that might mean the athlete doesn't have to rely on the IOC to drip drip drip some tiny bit of money out, rather than taking its billions and giving it to Olympics officials.

Filed Under: copyright, elaine thompson-herah, olympics, ownership
Companies: facebook, instagram, international olympic committee, ioc

Instagram's Big Experiment With De-Prioritizing 'Likes' Fizzles As Some People Apparently Really Like 'Likes'

from the ah-well-nevertheless dept

Back in the fall of 2019, we wrote about how Instagram was experimenting with hiding "likes" from US users, to try to cut down on the awkward incentives it created -- such as people obsessing over who and how many people liked the pictures they posted. It was an interesting move, and we appreciated the willingness to experiment with making sure the platform wasn't just encouraging socially problematic behavior. However, now the company has announced that some people really got upset without their likes.

What we heard from people and experts was that not seeing like counts was beneficial for some, and annoying to others, particularly because people use like counts to get a sense for what’s trending or popular....

I mean... that seems obvious? It's not clear why you needed to run a test to find that out. And wasn't part of the point of the experiment to move away from people obsessing over "trending" or "popular" content? Either way, Instagram's solution is to pass the decision on to users.

So... now it's all optional. Perhaps that's better than forcing it on everyone, but it is interesting:

Starting today, we’re giving you the option to hide like counts on all posts in your feed. You’ll also have the option to hide like counts on your own posts, so others can’t see how many likes your posts get. This way, if you like, you can focus on the photos and videos being shared, instead of how many likes posts get.

To some extent this is great. Having more options is good and giving more powers to the end users is obviously good. But it sure sounds like the defaults will still be to include likes, and that means the vast, vast majority of users will still have them.

Casey Newton has some more details about what happened, and says that despite Instagram boss Adam Mosseri really thinking this was going to be a big deal, it turned out that people just didn't really care one way or the other.

“It turned out that it didn't actually change nearly as much about … how people felt, or how much they used the experience as we thought it would,” Mosseri said in a briefing with reporters this week. “But it did end up being pretty polarizing. Some people really liked it, and some people really didn't.”

As Casey notes, this seems to go along with a lot of recent research suggesting that some of the early panic about how "the kids these days" were all obsessing about likes and trends and what not... turns out to not really be that true. It certainly has a lot of the hallmarks about a moral panic involving a new technology and "the kids these days."

Casey concludes that the unexpected lesson from the varied response to this experiment is really that users want more control over their own experience, which is certainly a message some of us have been banging the drum on that point for years. Of course, it remains to be seen if Instagram (and Facebook) bakes that lesson into other parts of the platform going forward...

Filed Under: favorites, likes, social media
Companies: instagram

Not This Again: Facebook Threatens To Sue Guy Who Registered 'DontUseInstagram.com'

from the don't-be-a-trademark-bully dept

Ah, this one takes me back to the early days of Techdirt, when the biggest nonsense we were writing about was giant corporate bullies threatening (or in some cases suing!) over so called "Sucks Sites" (that's an article from almost 20 years ago!). The issue was that people who were upset with a particular company would register the domain of CompanySucks.com to (usually) put up a protest site. The company (and its lawyers) would then threaten to sue the individual for trademark infringement. There were some mixed rulings over those sites, but in general most have decided that sucks sites are not trademark infringement, and are protected under a variety of theories -- including a lack of any possible confusion and because they're nominative fair use.

You'd have hoped that, by now, big company lawyers would recognize all of this. Apparently not Facebook's. Now, to be fair, as we recently discussed, for companies like Facebook, often they carefully police domains that make use of similar URLs in order to cut off sketchy phishing and scam sites. But it's one thing to go after such scammers... and it's another to go after someone who is obviously engaging in criticism.

Enter: DontUseInstagram.com, created by Paul Kruczynski.

The site now is designed to pretty much do what it says on the tin: give you reasons why you shouldn't use Instagram. Whether or not you agree with that messaging, it's clearly not infringing on Facebook/Instagram's trademarks. Someone should probably tell Instagram's lawyers. Because they sent a threat letter. In fact, they sent this threat letter before he'd even launched anything at the site, basically trying to intimidate him out of the site before he'd even done anything with it.

To Whom It May Concern,

We are writing concerning your registration and use of the domain name dontuseinstagram.com, which contains the Instagram trademark.

You are undoubtedly familiar with Instagram and its worldwide renown in providing photo sharing and editing services, online networking and related products and services through a number of channels, including through its mobile application software and its website available at Instagram.com. Instagram owns exclusive rights to the INSTAGRAM trademark, including rights secured through common law use and registration in the United States (Reg. Nos. 4,170,675 and 4,146,057) and internationally. Instagram is a global leader in photography software for mobile devices, with over 800 million monthly active accounts. Due to Instagram's exponential growth and immense popularity, the Instagram brand, is frequently, if not daily, referenced in the media and pop culture. Its fame entitles it to broad legal protection.

We have recently discovered that you registered the domain name, which incorporates the famous INSTAGRAM mark. Instagram has an obligation to its users and the public to police against the registration and/or use of domain names that may cause consumer confusion as to affiliation with or sponsorship by Instagram, dilute the distinctiveness of its INSTAGRAM mark, or otherwise tarnish the mark. Accordingly, in addition to civil actions, Instagram and its parent Facebook have filed numerous proceedings pursuant to ICANN'S Uniform Domain-Name Dispute- Resolution Policy (http://www.icann.org/en/help/dndr/udrp) to secure the transfer of infringing domain names. Moreover, the Anticybersquatting Consumer Protection Act provides for serious penalties (up to $100,000 per domain name) against persons who, without authorization, use, sell, or offer for sale a domain name that infringes another's trademark.

While Instagram respects your right of expression and your desire to conduct business on the Internet, Instagram must take action to stop the misuse of its intellectual property. As you can imagine, various third parties around the world have attempted to wrongfully capitalize on Instagram's reputation by registering domain names that include or are derived from the INSTAGRAM brand. Such names are confusingly similar to, dilutive of, and can tarnish the INSTAGRAM mark.

We understand that you may have registered dontuseinstagram.com without full knowledge of the law in this area. However, Instagram is concerned about your use of the Instagram trademark in your domain name. Accordingly, we must insist that you immediately cease using and disable either delete or transfer to Instagram any site available at that address. You should not sell, offer to sell, or transfer the domain name to any third party.

Please confirm in writing that you will agree to resolve this matter as requested. If we do not receive confirmation that you will comply with our request, we will have no other choice but to pursue all available remedies against you.

Sincerely,

Instagram IP & DNS Enforcement Group

Instagram, Inc.

Kruczynski was able to line up the Cyberlaw Clinic at Harvard Law's Berkman Klein Center to help him respond to those Instagram lawyers, explaining to them in fairly great detail how totally full of shit their threat letter is in a letter from Kendra Albert,

The legal claims that your letters make are frivolous. Even worse, your overreach imperils Mr. Kruczynski’s First Amendment rights. Mr. Kruczynski’s domain name is not likely to cause consumer confusion, which Instagram would be required to prove in order to succeed on a trademark infringement claim. See Boston Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1, 12 (1st Cir. 2008) (citing Borinquen Biscuit, 443 F.3d 116 (1st Cir. 2006)).

To establish likelihood of confusion, a trademark owner “must show more than the theoretical possibility of confusion.” Int'l Ass'n of Machinists & Aero. Workers, AFL-CIO v. Winship Green Nursing Ctr., 103 F.3d 196, 198 (1st Cir. 1996). For courts to find a likelihood of confusion, it has to be shown that there is “a likelihood of confounding an appreciable number of reasonably prudent purchasers exercising ordinary care.” Id. Given that Mr. Kruczynski’s domain has not even been launched, Instagram cannot show more than a theoretical possibility of confusion. Moreover, as Mr. Kruczynski’s website dontuseinstagram.com currently resembles nothing like the Instagram website, it is inconceivable that any reasonably prudent purchaser exercising ordinary care would confuse the two websites.

Even in the scenario that Mr. Kruczynski’s domain dontuseinstagram.com becomes live and operates in a way Mr. Kruczynski originally intended it to, Instagram will not be able to establish that there is likelihood of confusion in Mr. Kruczynski’s registration and use of dontuseinstagram.com under the First Circuit’s eight-factor test. See Oriental Fin. Grp., Inc. v. Cooperativa De Ahorro Crédito Oriental, 698 F.3d 9, 17 (1st Cir. 2012) (citing Beacon Mut. Ins. Co. v. OneBeacon Ins. Grp., 376 F.3d 8, 15 (1st Cir. 2004)). Mr. Kruczynski did not intend to claim any associations with the Instagram mark and did not intend to compete with Instagram. In fact, Mr. Kruczynski’s domain would serve as a platform to criticize Instagram’s user privacy violations, not as a social media platform for users to share photos and accumulate followers. The goods or services provided by dontuseinstagram.com would be significantly different from those provided by Instagram, and the channels of trade and advertising would be very different as well. It is unimaginable that there would be evidence of actual confusion where Instagram users actually confuse Instagram with a website criticizing Instagram, starting from the domain name itself. Even assuming that Instagram has a strong mark that most people recognize, it is overreaching for Instagram to forbid others from registering or using any name that mentions Instagram without due regard of relevant laws.

The existence of a parked page on Mr. Kruczynski’s domain does not create trademark infringement where there previously was not any. See, e.g., Acad. of Motion Picture Arts & Scis. v. GoDaddy.com, Inc., No. CV 10-03738 AB (CWx), 2015 U.S. Dist. LEXIS 120871 (C.D. Cal. Sep. 10, 2015) (holding that the plaintiff failed to meet its burden of proving that a domain name registrar who operates parked page programs acted with a bad faith intent to profit from the plaintiff’s marks). In fact, the existence of the parked page is largely irrelevant to the discussion of trademark infringement here, and you are overstepping by demanding Mr. Kruczynski remove the parked page on his own registered domain.

Your claim of Mr. Kruczynski’s alleged trademark infringement is ungrounded in law. The non-infringing nature of the use would have been obvious had an attorney even glanced at the name of the site.

To the extent that these emails were sent using an automated process that merely checks to see if a domain contains the word Instagram, and then automatically requests the transfer of a domain to you if it does, such behavior plays on the threat of litigation to suppress potentially lawful speech. I am aware that there may be many domains registered with the Instagram mark in them, some of which may be used for phishing or other nefarious purposes. But that does not justify a “spray and pray” strategy where you automatically send notices of infringement without any human review. Such notices may serve to unlawfully intimidate critics, requiring them to find legal counsel.

That reply was sent back in November and it requests that Instagram retract the threat letter and provide "a clear statement that you do not intend to file suit over his ownership of dontuseinstagram.com." Somewhat optimistically, it also said that such a letter should "be accompanied by a discussion of what processes you will implement in order to ensure any messages you may send to domain owners will not attempt to intimidate lawful users of the Instagram wordmark."

Neither happened. Instead, Instagram just went silent. It's quite likely that the human being who received the response letter realized how bad an idea it was to send that original threat letter, even if automated, but has just moved on to threatening someone else. But Instagram deserves to be called out for its practices which can lead to real intimidation for people, unlike Paul, who don't have the ability to have a knowledgeable lawyer respond to the threat.

That's unfortunate, because it means that there are no consequences for sending out such bogus, censorial threat letters. Well, other than having a site like Techdirt call out your stupid threats.

Filed Under: brand protection, chilling effects, criticism, domain registration, don't use instagram, free speech, sucks sites, trademark, trademark bullying
Companies: facebook, instagram

Open Season: FTC & 48 Attorneys General File Separate Antitrust Lawsuits Against Facebook

from the well-this-will-be-interesting dept

Everyone knew that this was coming eventually, but on Wednesday two separate antitrust lawsuits were filed against Facebook. First, the FTC filed a complaint, followed by 48 Attorneys General, representing 46 states, the District of Columbia and Guam (Guam!), similarly arguing that Facebook's acquisitions of Instagram and Whatsapp were an antitrust violation. I will say, upfront, that both cases appear to have a lot more meat to them than the DOJ's astoundingly weak case against Google. And yet... I'm still somewhat surprised at some of the claims made in both lawsuits that seem somewhat disconnected from reality.

As a quick summary, though, I'd say that both lawsuits make somewhat weak claims regarding acquisitions (mainly, but not limited to) Instagram and WhatsApp. Both lawsuits, though, do make much stronger claims about Facebook abusing its API to try to limit competition (though, doing so without the context of privacy questions that may have driven Facebook to close off more access to its API). I think the API questions are the most interesting to explore, and the ones where Facebook may face the most trouble in court.

Let's go through each one separately. The key to the FTC's case is twofold: (1) that Facebook buys up whatever upstart competitors it can find that represent a competitive threat (e.g., Instagram & Whatsapp) and (2) that it puts in place "restrictive policies" that hinder the upstart competitors it cannot acquire. I'm not sure that either claim is fully supported by the facts, but perhaps there's more evidence to support them. Of course, a key aspect in any antitrust case is proving (1) that there's a market in which the company is a monopoly and (2) that the company leverages that monopoly in a manner that is abusive to competition. The FTC case argues that the "market" here is "personal social networking," which seems like a fairly narrowly defined market:

Facebook holds monopoly power in the market for personal social networking services (“personal social networking” or “personal social networking services”) in the United States, which it enjoys primarily through its control of the largest and most profitable social network in the world, known internally at Facebook as “Facebook Blue,” and to much of the world simply as “Facebook.”

In the United States, Facebook Blue has more than [REDACTED] daily users and more than [REDACTED] monthly users. No other social network of comparable scale exists in the United States.

Of course no one denies that Facebook is the largest, but does that automatically make it a monopolist? In the space of "personal social networking," you could easily argue that there are a number of significantly sized competitors, including Twitter, Snap, YouTube, and TikTok (which, notably, is a relatively new entrant that was able to build up a large audience, despite the presence of Facebook). The complaint says that buying Instagram and WhatsApp were attempts to retain this monopoly position:

Since toppling early rival Myspace and achieving monopoly power, Facebook has turned to playing defense through anticompetitive means. After identifying two significant competitive threats to its dominant position—Instagram and WhatsApp—Facebook moved to squelch those threats by buying the companies, reflecting CEO Mark Zuckerberg’s view, expressed in a 2008 email, that “it is better to buy than compete.” To further entrench its position, Facebook has also imposed anticompetitive conditions that restricted access to its valuable platform—conditions that Facebook personnel recognized as “anti user[,]” “hypocritical” in light of Facebook’s purported mission of enabling sharing, and a signal that “we’re scared that we can’t compete on our own merits.”

I can see Instagram fitting into that model, but am a little more perplexed by the inclusion of WhatsApp, which is more about messaging than a traditional "social network." It really feels like they're shoehorning WhatsApp into this bucket to make the argument seem stronger. The case even admits that WhatsApp is about messaging, not social networking, but then argues that Facebook feared that WhatsApp could eventually pivot to social media. Which, sure. But... it still seems like a stretch to argue that this automatically makes it anticompetitive to buy.

If anything, this lawsuit suggests that Facebook's management has both read and internalized Clayton Christensen's "The Innovator's Dilemma" and recognized that competition could come from orthogonal directions.

As for Instagram, the company was quite small -- famously only 13 employees -- when Facebook acquired it. It is true that it was building up some level of success, but it seems to suggest some level of revisionist thinking to say that it was somehow going to take down Facebook, and that acquiring it somehow changed Facebook's competitive landscape in any meaningful way.

The other issue is that both the Instagram and Whatsapp decisions were reviewed at the time -- and approved by the FTC and the DOJ. If anything, this all feels a bit like revisionist history to go back many years later and say "well these were obviously anti-competitive" when they certainly didn't appear to be at the time of acquisition. And, yes, the lawsuits have quotes from people inside Facebook noting that Instagram and WhatsApp could potentially represent a competitive threat, but merely buying up some potential competitors doesn't automatically mean that it's anti-competitive behavior.

The FTC's case gets a lot stronger when it talks about certain practices the company put in place to discourage and stymie other competitors:

In order to communicate with Facebook (i.e., send data to Facebook Blue, or retrieve data from Facebook Blue) third-party apps must use Facebook APIs. For many years— and continuously until a recent suspension under the glare of international antitrust and regulatory scrutiny—Facebook has made key APIs available to third-party apps only on the condition that they refrain from providing the same core functions that Facebook offers, including through Facebook Blue and Facebook Messenger, and from connecting with or promoting other social networks.

As someone who believes strongly that, for competitive reasons, Facebook should open up its APIs, this argument seems more compelling to me. There's also a much stronger case to be made here that selectively opening up its API based on competitive rationale is more likely to have resulted in consumer harm.

By suppressing, neutralizing, and deterring the emergence and growth of personal social networking rivals, Facebook also suppresses meaningful competition for the sale of advertising. Personal social networking providers typically monetize through the sale of advertising; thus, more competition in personal social networking is also likely to mean more competition in the provision of advertising. By monopolizing personal social networking, Facebook thereby also deprives advertisers of the benefits of competition, such as lower advertising prices and increased choice, quality, and innovation related to advertising.

It feels like that argument would need a lot more evidence. While I agree that the API arguments are the strongest, the entire complaint ignores the fact that there are competitors, and that some of those competitors have sprung up in recent years, despite what it claims are recent barriers to entry. Snap and TikTok both became prominent well after it is argued that Facebook was hellbent on suppressing competition. And both are doing decently well. The complaint doesn't even mention TikTok, and only mentions Snap to say that Facebook failed in its attempt to purchase the company (which seems to cut against the argument that Facebook was just buying up any competitors). There are some other mentions of "Snap" but, amusingly, that's only because it was the internal code-name for Facebook's failed attempt to compete with Instagram, prior to purchasing Instagram.

Based on all of that, I think the claims about buying up Instagram and WhatsApp are pretty weak -- but there is an interesting area to explore regarding whether or not Facebook used its API access to suppress competition.

Specifically, between 2011 and 2018, Facebook made Facebook Platform, including certain commercially significant APIs, available to developers only on the condition that their apps neither competed with Facebook (including, at relevant times, by “replicating core functionality” of Facebook Blue or Facebook Messenger), nor promoted competitors. Facebook punished apps that violated these conditions by cutting off their use of commercially significant APIs, hindering their ability to develop into stronger competitive threats to Facebook Blue.

And:

On July 27, 2011, Facebook introduced a new policy that “Apps on Facebook may not integrate, link to, promote, distribute, or redirect to any app on any other competing social platform.”

This policy was intended to harm the prospects for—and deter the emergence of— competition, including personal social networking competitors. Indeed, the immediate impetus for the policy was Google’s launch of the Google+ personal social network. In a July 27, 2011, email, a Facebook manager explained: “[W]e debated this one a lot. In the absence of knowing what and how google was going to launch, it was hard to get very specific, so we tended towards something broad with the option to tighten up as approach and magnitude of the threat became clear.” Later that same day, another Facebook employee protested the anticompetitive move to colleagues: “I think its [sic] both anti user and sends a message to the world (and probably more importantly to our employees) that we’re scared that we can’t compete on our own merits.”

To me, this is the strongest argument in the entire filing, though it doesn't seem to be the one most people are focusing on.

One other thing highlighted in the complaint -- which we've discussed here before -- is how Facebook bought an analytics company called Onavo, which it pretended as a VPN service, but which it actually used as a tool to snoop on what apps people were using, in order to quickly identify up and coming competitive threats:

By acquiring Onavo, Facebook obtained control of data that it used to track the growth and popularity of other apps, with an eye towards identifying competitive threats for acquisition or for targeting under its anticompetitive platform policies. As a December 2013 internal slide deck noted: “With our acquisition of Onavo, we now have insight into the most popular apps. We should use that to also help us make strategic acquisitions.” Facebook also used Onavo data to generate internal “Early Bird” reports for Facebook executives, which focused on “apps that are gaining prominence in the mobile eco-system in a rate or manner which makes them stand out.” Facebook shut down Onavo in 2019 following public scrutiny; however, it continues to track and evaluate potential competitive threats using other data.

Of course, looking for useful data to identify competitors isn't, by itself, anti-competitive. It's kind of expected. I do think there's a potential "false advertising" claim that could be made about Facebook claiming Onavo was a VPN or was somehow designed to protect user privacy -- but that's different from an antitrust claim.

Moving on to the AGs' case. It replicates many of the same arguments, though in many more words. Once again, it focuses on Instagram and WhatsApp, but not in very convincing ways. The issue of Facebook's API policies is more compelling:

As part of its strategy to thwart competitive threats, Facebook pursued an open first–closed later approach in which it first opened its platform to developers so that Facebook’s user base would grow and users would engage more deeply on Facebook by using third-party services. This strategy significantly boosted engagement on Facebook, enhanced the data it collected, and made the company’s advertising business even more profitable. Later, however, when some of those third-party services appeared to present competitive threats to Facebook’s monopoly, Facebook changed its practices and policies to close the application programming interfaces (“APIs”) on which those services relied, and it took additional actions to degrade and suppress the quality of their interconnections with Facebook.

Again, I am in agreement that this is the behavior by Facebook that is most concerning -- but it also leaves out some important context. Namely, that Facebook was pressured to close down access to its APIs because many people (including some of the AGs who are part of this lawsuit) were making noises about the privacy concerns related to Facebook's more open API access (as noted in the Cambridge Analytica scandal). One of the more frustrating things to me about all of this is how few people are willing to grapple with the tradeoffs here. If you complain about privacy issues it pushes Facebook to close off access to its APIs, which give it more anticompetitive power. But if you demand more open APIs, then you have more privacy questions.

The AG's case, though, does make the (compelling) argument that Facebook used its more open API access setup to build growth, and then slowly cut back on it to block competitors:

One critical reason for Facebook’s accelerated growth trajectory was a series of initiatives that opened Facebook up to mutually beneficial partnerships with third parties.

In 2007, Facebook launched Facebook Platform—an innovative tool that set it apart from other firms. Facebook Platform had a set of open APIs—mechanisms for sharing data between independent services—that enabled developers to build applications that interoperated with the Facebook social networking site. Developers scrambled to create applications on the Facebook Platform, enhancing Facebook Blue’s functionality, driving more users to the Facebook site, and increasing the engagement of existing users. Facebook Platform created a symbiotic relationship between Facebook and developers that yielded significant value for both.

In 2008, Facebook introduced Facebook Connect—a tool that facilitated still greater interconnection with Facebook Blue. Through Facebook Connect, users could sign in to third-party websites using their Facebook credentials. By 2011, Facebook Connect had become one of the most popular ways to sign in to services across the internet as users took advantage of the efficiency afforded to them. As was the case with the Facebook Platform, third-party sites and Facebook itself found the relationship fostered by Facebook Connect to be a mutually valuable one. Facebook provided third parties with information about users and their friends and drove traffic to third-party sites by making it easier for users to sign in. In return, Facebook captured valuable data about users’ off-Facebook activity to enhance its social graph and ability to target advertising.

In April 2010, Facebook invited even more interaction with third-party websites and apps. It launched the Open Graph API, enabling those sites to add plug-ins, such as the Facebook “Like” button that allowed Facebook Blue users to become “fans” of the third-party site. The sites were highly motivated to install the Like button and encourage its use, as a “Like” would be shared on the user’s news feed and profile, thereby promoting the site to the user’s friends and family. One week after the introduction of Open Graph, 50,000 websites had installed Open Graph plug-ins. Those sites realized the immediate benefits of a massive new distribution channel, and Facebook’s growth increased accordingly.

But then when upstarts began using the openness to build up more competitive power, Facebook cut back on the access:

After the threat from Google+ had passed, and after years of promoting open access to Facebook Platform, Facebook increasingly turned to Platform as a tool to monitor, leverage, and harm (via rescinding API access) apps that Facebook viewed as actual or potential competitive threats.

In 2013, Facebook amended its Platform policy (described above) to forbid applications that “replicat[e] [Facebook’s] core functionality,” with no explanation as to what Facebook considered its core functionality, or how such policies would apply when Facebook expanded its functionality to a new area.

Facebook began to selectively enforce its policies to cut off API access to companies Facebook worried might one day threaten its monopoly. Facebook itself described its Platform as a “critical piece of infrastructure” for new apps being developed: this is particularly true for social apps which rely heavily on network effects. Facebook knew that an abrupt termination of established access to Facebook APIs could be devastating to an app—especially one still relatively new in the market. An app that suddenly lost access to Facebook’s APIs was hurt not only because its users would no longer be able to bring their friend list to the new app, but also because a sudden loss of functionality, which creates broken or buggy features, suggests to users that an app is unstable. Facebook’s actions therefore disincentivized developers from creating new features that might compete with Facebook: adding new social features to an existing app might come at the significant cost of access to Facebook’s APIs.

In 2014, Facebook announced significant changes to its Platform APIs with “Graph API 2.0” (also referred to internally as Platform 3.0). In connection with Graph API 2.0, Facebook required prior review of all requests to access many Platform APIs, including the Find Friends API, resulting in those APIs being cut off for third-party apps that previously had enjoyed such access on Platform. Under the new approach, developers could not access Facebook’s APIs unless they submitted an application and received approval, which Facebook refused to grant to apps it classified as competitors or potential competitors. That allowed Facebook to proactively and categorically ensure that no app that might constitute a competitive threat would get API access in the first place, sparing Facebook the need to withdraw access after-the-fact.

One Facebook employee described in January 2014 the jarring impact of enticing developers to interconnect and then suddenly revoking their access:

We sold developers a bill of goods around [Open Graph] 2 years ago and have been telling them ever since that one of the best things they could do is to a/b test and optimize the content and creative. Now that we have successes . . . in 2013, we’re talking about taking it away . . . . Even if we were to give them more traffic on home page in some other way, it still nullifies all of their work to integrate [Open Graph] for the last 2 years.

As a further part of its scheme to maintain its monopoly position, Facebook has used its control over Facebook Platform to degrade the functionality and distribution of potential rivals’ content when it perceived those firms as threats to Facebook’s monopoly power. This degradation suppressed the flow of user traffic to the rivals’ services, reducing overall output, and harming users in the process.

Again, this entire narrative leaves out some of the privacy questions raised by the open platform access -- but I do think that these are the strongest arguments in the complaint.

There are some mostly-redacted stories included in the complaint, arguing that certain companies, whose names are redacted, were directly harmed by Facebook's API policies. It would be interesting to see who these companies are, because I've seen some somewhat scammy companies make the argument that Facebook's API policies were designed to harm them, but then the details suggest that the reality was more that Facebook was trying to stop them from being scammy. The details matter here.

There are some examples with named companies, including Twitter's Vine, Path, and Circle. Some of those stories seem somewhat compelling, though I'm not sure they move the needle enough.

In the end, I think these complaints are stronger than the DOJ's complaint against Google. That's not to say that they are particularly strong. I do think the most compelling arguments are entirely around Facebook's use of the API, though the company will have arguments it can make in response regarding reasons why it made those decisions (with a focus on protecting user privacy). Whether or not that will be enough to hold up will likely be a key part of this case. The arguments about Instagram and WhatsApp, while they'll get most of the public attention, and are the arguments that people frequently make about Facebook's position, strike me as fairly weak. Both acquisitions were reviewed and approved at the time, and the presence of other competitors in the marketplace seems to undercut the arguments there.

The key question that I think the courts will look at is whether or not Facebook pulling back on API access trips an antitrust wire. Antitrust experts may have better suggestions for cases to look at, but the Aspen Skiing case appears to be roughly analogous -- in which the question was whether or not a dominant firm terminating an agreement to deal with a competitor was an antitrust violation. However, subsequent cases have shown that the Supreme Court no longer seems to support that notion. Verizon v. Trinko likely cut back the Aspen Skiing rules significantly -- and the courts would need to signal a pretty big shift to bring those rules back around for Facebook.

As for remedies, if Facebook were forced to spin off Instagram and WhatsApp, I honestly don't think it would have that big of an impact on Facebook itself. I'm not against that being the final decision, but I don't see how that would solve any of the issues at play. Either way, Facebook is going to be very busy in court for the next decade or so....

Filed Under: anti-competitive, antitrust, apis, attorneys general, competition, ftc, lawsuists
Companies: facebook, instagram, whatsapp

New Hampshire Supreme Court Issues Very Weird Ruling Regarding Section 230

from the but-that-makes-no-sense dept

In New Hampshire, Facebook has been dealing with a pro se lawsuit from the operator of a cafe, whose Instagram account was deleted for some sort of terms of service violation (it is never made clear what the violation was, and that seems to be part of the complaint). The Teatotaller cafe in Somerset, New Hampshire, apparently had and lost an Instagram account. The cafe's owner, Emmett Soldati first went to a small claims court, arguing that this violated his "contract" with Instagram, and cost his cafe revenue. There are all sorts of problems with that, starting with the fact that Instagram's terms of service, like every such site, say they can remove you for basically any reason, and specifically says:

You agree that we won’t be responsible . . . for any lost profits, revenues, information, or data, or consequential, special, indirect, exemplary, punitive, or incidental damages arising out of or related to [the Terms of Use], even if we know they are possible. This includes when we delete your content, information, or account.

And then there's the Section 230 issue. Section 230 should have wiped the case out nice and quick, as it has in every other case involving a social media account owner getting annoyed at being moderated. And, indeed, it appears that the local court in Dover tossed the case on 230 grounds. Soldati appealed, and somewhat bizarrely, the New Hampshire Supreme Court has overturned that ruling and sent it back to the lower court. That doesn't mean that Facebook will definitely lose, but the ruling is quite remarkable, and an extreme outlier compared to basically every other Section 230 case. It almost reads as if the judges wanted this particular outcome, and then twisted everything they could think of to get there.

To be clear, the judges who heard the case are clearly well informed on Section 230, as they cite many of the key cases in the ruling. It says that to be protected by Section 230(c)(1) (the famed "26 words" which say a website can't be held liable for the actions of its users), there's a "three pronged" test. The website has to be an interactive computer service -- which Facebook clearly is. The plaintiff has to be an information content provider, which Teatotaller clearly is. That leaves the last bit: does the lawsuit seek to hold Facebook liable as a publisher or speaker.

Let's take a little journey first. One of the things that often confuses people about Section 230 is the interplay between (c)(1) and (c)(2) of the law. (c)(1) is the websites not liable for their users' content part, and (c)(2) is the no liability for any good faith moderation decisions part. But here's the weird thing: in over two decades of litigating Section 230, nearly every time moderation decisions are litigated, the website is considered protected under (c)(1) for those moderation decisions. This used to strike me as weird, because you have (c)(2) sitting right there saying no liability for moderation. But, as many lawyers have explained it, it kinda makes sense. (c)(1)'s language is just cleaner, and courts have reasonably interpreted things to say that holding a company liable for its moderation choices is the same thing as holding it liable as the "publisher."

So, in this case (as in many such cases), Facebook didn't even raise the (c)(2) issue, and stuck with (c)(1), assuming that like in every other case, that would suffice. Except... this time it didn't. Or at least not yet. But the reason it didn't... is... weird. It basically misinterprets one old Section 230 case in the 9th Circuit, the somewhat infamous Barnes v. Yahoo case. That was the case where the court said that Yahoo lost its Section 230 protections because Barnes had called up Yahoo and the employee she spoke to promised to her that she would "take care of" the issue that Barnes was complaining about. The court there said that thanks to "promissory estopel," this promise overrode the Section 230 liabilities. In short: when the company employee promised to do something, they were forming a new contract.

Barnes is one of the most frequently cited case by people trying to get around Section 230, and it almost never works, because companies know better than to make promises like the one that happened in the Barnes case. Except here, the judges say that the terms of service themselves may be that promise, and thus it can be read as the terms of service overrule Section 230:

However, to the extent that Teatotaller’s claim is based upon specific promises that Facebook made in its Terms of Use, Teatotaller’s claim may not require the court to treat Facebook as a publisher. See Barnes, 570 F.3d at 1107, 1109 (concluding that the defendant website was not entitled to immunity under the CDA for the plaintiff’s breach of contract claim under a theory of promissory estoppel because “the duty the defendant allegedly violated springs from a contract—an enforceable promise—not from any non-contractual conduct or capacity of the defendant”); Hiam v. Homeaway.com, Inc., 267 F. Supp. 3d 338, 346 (D. Mass. 2017) (determining that “the Plaintiffs are able to circumvent the CDA” as to certain claims by asserting that “through [the defendant’s] policies, [the defendant] promises (1) a reasonable investigatory process into complaints of fraud and (2) that the website undertakes some measure of verification for each posting”), aff’d on other grounds, 887 F.3d 542 (1st Cir. 2018).

This is not a total win for Teatotaller, as the court basically says there isn't enough information to know whether the claims are based on promises within the terms of service, or if it's based on Facebook's decision to remove the account (in which case, Facebook would be protected by 230). And thus, it remands the case to try to sort that out:

Thus, because it is not clear on the face of Teatotaller’s complaint and objection whether prong two of the CDA immunity test is met, we conclude that the trial court erred by dismissing Teatotaller’s breach of contract claim on such grounds. See Pirozzi, 913 F. Supp. 2d at 849. We simply cannot determine based upon the pleadings at this stage in the proceeding whether Facebook is immune from liability under section 230(c)(1) of the CDA on Teatotaller’s breach of contract claim. See id. For all of the above reasons, therefore, although Teatotaller’s breach of contract claim may ultimately fail, either on the merits or under the CDA, we hold that dismissal of the claim is not warranted at this time.

So, there are still big reasons why this case against Facebook is likely to fail. On remand, the court may recognize that the issue is just straight up moderation and dismiss again on 230 grounds. Or, it may say that it's based on the terms of service and yet still decide that nothing Facebook did violated those terms. Facebook is thus likely to prevail in the long run.

But... this ruling opens up a huge potential hole in Section 230 (in New Hampshire at least), saying that what you put into your terms of service could, in some cases, overrule Section 230, leading you to have to defend whether or not your moderation decision somehow violated your terms.

That sound you hear is very, very expensive lawyers now combing through terms of service on every dang platform out there to figure out (1) how to shore them up to avoid this problem as much as possible, or (2) how to start filing a bunch of sketchy lawsuits in New Hampshire to exploit this new loophole.

Meanwhile, Soldati seems to be celebrating a bit prematurely:

“I think it’s kind of incredible,” said Soldati, who represented himself as a pro se litigant. “I think this is a very powerful message that if you feel a tech company has trampled or abused your rights and you don’t feel anyone is listening ... you can seek justice and it will matter.”

That's... not quite the issue at hand. Your rights weren't trampled. Your account was shut down. That's all. But in fighting this case, there may be a very dangerous hole now punched into Section 230, at least in New Hampshire, and it could create a ton of nuisance litigation. And, that even puts business owners like Soldati at risk. 230 protects him and the comments people make on his (new) Instagram account. But if he promises something... he may wipe out those protections.

Filed Under: emmett soldati, new hampshire, section 230, terms of service
Companies: facebook, instagram, teatotaller

Netflix, Disney Throttle Video Streams In Europe To Handle COVID-19 Internet Strain

from the throttle-me dept

Netflix, Disney, YouTube, and Instagram have all announced they're temporarily throttling their video streams in Europe to help mitigate the bandwidth strain created by COVID-19, as millions hunker down to slow the spread of the pandemic. In a blog post, Netflix stated the company was throttling back the streaming quality of its titles by around 25% for 30 days after European regulators asked the company to do so to handle the pandemic-driven bandwidth surge:

"We immediately developed, tested and deployed a way to reduce Netflix’s traffic on these networks by 25% - starting with Italy and Spain, which were experiencing the biggest impact. Within 48 hours, we’d hit that goal and we’re now deploying this across the rest of Europe and the UK."

Netflix had already integrated settings that let users on slower or capped broadband plans manage their bit rate and stream quality. According to the company, the impact on visual quality should be minor (for everybody but videophiles, anyway):

"In normal circumstances, we have many (sometimes dozens) of different streams for a single title within each resolution. In Europe, for the next 30 days, within each category we’ve simply removed the highest bandwidth streams. If you are particularly tuned into video quality you may notice a very slight decrease in quality within each resolution. But you will still get the video quality you paid for."

So far, Netflix has yet to indicate that similar measures will be coming to the United States, though it's certainly possible as more and more locations engage in everything from voluntary self-quarantines to mandatory shelter in place requirements. Disney's Disney+ service, which launches across Europe on Tuesday, will similarly incorporate a bitrate throttling scheme for the foreseeable future. The company's launch of Disney+ in France has been delayed until April 7 at the request of the French government.

Many telecom executives and experts I've spoken to about the strain COVID-19 will place on U.S. networks have remained largely optimistic the U.S. internet will be able to handle the load, though many are quick to point out that it's hard to make predictions given the unprecedented nature of the pandemic--and the US' historic inability to craft accurate broadband speed and availability maps:

"Blair Levin was a former FCC chief of staff and co-author of the agency’s 2010 “National Broadband Plan."...

“I don't think anyone knows,” Levin said. “First, the FCC has done such a poor job of collecting data that we don't know where we are on many points. Second, we really don't know how much bigger the bandwidth demands will be. So this situation will be a stress test and show us where we are strong and where we are weak."

Most of those weaknesses shouldn't be particularly surprising for Techdirt readers. The central transit core of the US internet shouldn't have problems; it's the spotty, expensive, and slow "last mile" where a lot of headaches will pop up. US telcos, who've neglected their infrastructure for years, have refused to upgrade (or in some instances even repair) the nation's aging DSL lines. As entire families attempt to use sluggish era-2003 speeds to teleconference and stream video, games, and music, problems will inevitably arise (especially on the upstream side). VPNs could also be another congestion point.

But the biggest problem remains affordability and availability. For years, arguments that broadband should be seen as an essential utility were brushed aside, and now the "digital divide" could easily become a matter of life and death. Some 44 million Americans can't get any kind of broadband whatsoever, and thanks to limited U.S. competition (especially at faster speeds), many more can't afford a decent connection. This patchy, expensive, barely competitive nature of US telecom networks is something the industry's biggest players have lobbied to perpetuate for years, and now the check is likely coming due for many.

Filed Under: bandwidth, covid-19, europe, networks, streaming, throttling, video streams
Companies: disney, instagram, netflix, youtube

As The World Frets Over Social Media Tracking For Advertising, Young People Are Turning Fooling Sites Into Sport

from the the-games-we-play dept

As the techlash continues to rage against tech and social media companies, one of the more common criticisms has been how sites track users in order to feed them advertising. Now, I won't pretend to believe that these concerns are entirely unfounded. There is something creepy about all of this. That perception is also not helped by the opaque manner in which sites operate, nor the manner in which these sites often barely inform users of the tracking that is in place. Through it all, those that have the worst opinions of the internet and tech companies often couch their concerns in hand-wringing over how these sites handle younger users.

Except that, as per usual, younger users are way ahead of the adults. Rather than waiting to rely on some half-brained "for the children!" legislation, at least some youth are instead making a sport out of beating social media sites at their own game. The CNET post focuses on one teenager, Samantha Mosley, and her use of Instagram.

But unlike many of Instagram's users, Mosley and her high school friends in Maryland had figured out a way to fool tracking by the Facebook-owned social network. On the first visit, her Explore tab showed images of Kobe Bryant. Then on a refresh, cooking guides, and after another refresh, animals.  Each time she refreshed the Explore tab, it was a completely different topic, none of which she was interested in. That's because Mosley wasn't the only person using this account -- it belonged to a group of her friends, at least five of whom could be on at any given time. Maybe they couldn't hide their data footprints, but they could at least leave hundreds behind to confuse trackers.

These teenagers are relying on a sophisticated network of trusted Instagram users to post content from multiple different devices, from multiple different locations.

Here's how this works. One person creates an Instagram account, or maybe more than one. Then that person requests a password reset and sends that link to a trusted friend without closing their own session. Now that both people have active sessions, person two begins uploading photos, which triggers Instagram's tracking on this new device. Rinse and repeat and suddenly you've given Instagram, which assumes it is tracking one person, a ton of data from many people. The end result is the site has no real insight into the behavior of any one person. This can be further gamed by posting photos of people that are not those operating on the account. If these users are geographically disperse, that too adds confusing data for Instagram's tracking.

"They might be like, 'Hey, you posted from this hamburger place in Germany, maybe you like Germany, or hamburgers, or traveling, we'll just throw everything at you,'" Mosley said. "We fluctuate who's sending to what account. One week I might be sending to 17 accounts, and then the next week I only have four."

Facebook said that this method was not against its policies, but didn't recommend it to people because of security concerns.

So, why are these young people doing this? Part of it is something of a sport. The other part is a desire by young people for privacy. Despite all the concerns of the older generations, young people are better than average when it comes to being aware of how tech companies and social media sites are using their data, tracking them for advertising purposes, and all the rest. I imagine that part of this is these young people thumbing their noses at these companies thinking they will blindly allow this intrusion on their desired privacy.

Either way, even the adults who would instead like to go the regulation or legislative routes admit this is all fairly brilliant.

Teens shouldn't have to go to those lengths to socialize privately on Instagram, said Liz O'Sullivan, technology director at the Surveillance Technology Oversight Project.

"I love that the younger generation is thinking along these lines, but it bothers me when we have to come up with these strategies to avoid being tracked," O'Sullivan said. "She shouldn't have to have these psyop [psychological operations] networks with multiple people working to hide her identity from Instagram. The platform should just have an account that works and lets people feel safe about being on social media."

All well and good, but you can wish for that in one hand and spit in the other, and see which one fills up faster. Meanwhile, the kids are handling this just fine.

Filed Under: adaptation, groups, kids, privacy, social media
Companies: instagram

Twitter And Instagram Both Begin Experiments In Decreasing The More Socially Questionable Incentives Of Their Platforms

from the fascinating-to-see dept

Two separate news reports last week highlighted how both Twitter and Instagram appear to be taking to heart arguments made about how both of those platforms may (inadvertently) encourage questionable behavior. Instagram will begin hiding "likes" from users in the US to cut down on the dopamine rush of trying to maximize those bits of pointless social validation:

Months after the company tested hiding "like" counts in Australia, Brazil, Canada, Ireland, Italy, Japan, and New Zealand, CEO Adam Mosseri announced today at WIRED25 that some Instagram users in America can expect their like counts to vanish from public view.

The company will begin testing next week, at first rolling out the change to a limited number of accounts.

Meanwhile, Twitter is going to begin experimenting with some small nudges to not rush in to attack people as a first response. The moves here are a lot more subtle than Insgram's hiding of likes and involve encouraging the use of emoji.

In a meeting at its San Francisco headquarters in late October, Gasca and Suzanne Xie, director of product management at Twitter, showed off two experiments among several that will go live in the coming weeks: In the first, Twitter will add an emoji to a retweet, giving people a chance to quote-tweet without going into the compose field. Gasca and Xie want to find out if this feature might encourage people to express more nuanced emotions, putting a damper on dunking and mindless retweeting.

In the second experiment, Twitter will automatically suggest people use an emoji in their replies. If you like something, you could use the heart-eyes emoji. If you don’t, you could use the red circle with a line going through it. But if you pick a negative emoji, Twitter will ask, “Why do you disagree?” — which it hopes will prompt a more thoughtful reply, rather than a flame war.

To be honest, I'm not entirely sure how or why this would work to decrease negative responses -- though at least popping up the interstitial question of "why do you disagree" (as per the second experiment) might drive at least some people to think twice before rushing to dunk on someone.

I'm not sure either of these moves will really change the overall incentives or how these platforms are used, but I find both fascinating for different reasons: a much more clear acknowledgement from both platforms that overall incentives matter, and that small design choices can have outsized influence on how the platforms are used. Given that, it's fascinating to see both platforms then choose to experiment with the little nudges built into the design of their platforms to see how it will play out in terms of usage -- especially regarding socially questionable activities on both platforms.

Of course, I can imagine how their could be some pushback as well, concerning how these are the kinds of subtle paternalistic moves that some people fear will be used to influence behavior in manners that some might not like. I think it's pretty clear that, in both cases above, the sites are aiming to improve the overall "user health" levels on their platform, but I can see how some might (or absolutely will!) claim that they're being used to tamp down on certain viewpoints or ideas -- which, to some extent, highlights why there are no "win" conditions for platforms making these decisions. Every move will be criticized in one way or another.

If you can get past that, however, I think it's a good thing that the platforms are moving to explore how these kinds of tweaks can improve their platforms and how people interact with them.

Filed Under: behavior, emoji, likes, social behavior, social media, social networks, trolling, tweaks
Companies: instagram, twitter