MLB Commissioner Meets The Streisand Effect After Ousting Ken Rosenthal From The MLB Network

from the swing-and-a-miss dept

We've talked a great deal about Major League Baseball here at Techdirt. Notably, for a long time those discussions have positive in nature, whether it was MLB's interesting pivots once COVID-19 went global or the expansion of its excellent streaming services. Now, while the league has also had issues playing IP enforcer in the past, or the more recent self-own the league conducted in response to its players lockout, the fact is that commissioner Rob Manfred has generally been a fresh voice of modernity and technological progress for the league.

That makes it all the more perplexing that Manfred is currently being introduced to the concept of the Streisand Effect. At issue is the ousting of famed MLB reporter Ken Rosenthal. Rosenthal is, perhaps, one of the most respected baseball reporters in the industry, and was apparently fired from the MLB Network as a result of a scathing piece he did on Manfred's handling of baseball's 2020 season as it relates to working something out with the Players' Union for handling COVID protocols. Rosenthal was quietly suspended from MLBN airtime for three months over that article. Now, he's out entirely.

MLB Network has cut ties with insider Ken Rosenthal in what is believed to be the end result of acrimony that peaked in the summer of 2020 after Rosenthal criticized commissioner Rob Manfred, The Post has learned.

Rosenthal, 59, remains at Fox Sports, where he is a fixture on its weekly coverage and is a dugout reporter for its top games, including the World Series. He also will continue at The Athletic.

What is interesting is that at least one of Rosenthal's colleagues at The Athletic has been making the rounds on local sports talk radio pointing out that the piece critical of Manfred had barely any legs at all. It survived something like a day or two in a busy news cycle and very few people paid it much attention. Aside from Manfred, of course, who, those same colleagues at The Athletic are also insisting, did all of this to Rosenthal personally due to skin so thin it's nearly translucent.

In June 2020, Rosenthal’s analysis of Manfred for The Athletic featured some light criticism, but it didn’t appear to delve into anything personal. In one piece, Rosenthal wrote, “As if the perception that Manfred is beholden to owners and out of touch with players was not bad enough, he was trending on Twitter on Monday after performing a massive flip-flop.”

Since then, Rosenthal’s role was slightly diminished at the network. Now, he’s out entirely.

And now that story is getting far more burn than it did initially. Streisand Effect. Also, Rosenthal has plenty of outlets to continue to criticize Manfred and MLB, whether it's at The Athletic or on Fox Sports.

And the MLB Network has lost at least some of its credibility. For years, it has worked to build itself up as a credible news venture -- even as it was owned by the league -- and seemed to try to bend over backwards to demonstrate the independence of its reporting from the league's own direct interests. But now all of that is shot. This is playing the short game rather than the long game, opting to punish someone critical without understanding that having critics on staff gave MLB Network far more credibility than it has now.

Filed Under: baseball, journalism, ken rosenthal, reporting, rob manfred, streisand effect
Companies: mlb network

PD Whose Officers Brutalized A Black Soldier For Driving To A Well-Lit Area Sued By Virginia Attorney General

from the fuck-with-the-rights,-get-the-horns dept

Windsor, Virigina was the recipient of unflattering nationwide news coverage due to two police officers deciding a black driver -- and Army medic -- needed to be brutalized for seeking a well-lit area to pull over. The whole thing was caught on the officers' body cameras, including their threats to make Lieutenant Caron Nazario "ride the lightning" (a reference to the officer's Taser) as well as the officer's affirmation that Nazario was right to be scared to exit his vehicle.

A low-speed, non-lengthy, non-chase of one hundred seconds led to several minutes of violence, threats of further violence, and violated rights. The officers shouted conflicting orders -- to both keep hands where they could be seen as well as to exit the vehicle, something impossible for Nazario to comply with considering he still had his seatbelt on. The officers pointed their guns at him the entire time, pausing only to pepper spray him in the eyes. Nazario sued. That lawsuit is still ongoing. One of the officers -- Daniel Crocker -- is also facing criminal charges.

But there's a postscript to this case that involves another lawsuit involving the Windsor Police Department. The state's Attorney General, Mark Herring, is suing the Town of Windsor over biased policing engaged in by PD officers.

After a months-long investigation revealed disturbing evidence of discriminatory, unconstitutional policing, Attorney General Mark R. Herring today filed suit against the Town of Windsor alleging that its police department has operated in a way that led to discrimination against African Americans and violated their constitutional rights. This is the first enforcement action against a law enforcement agency under the new state law empowering the attorney general to file suit to stop systemic violations of Virginians’ civil rights.

The lawsuit [PDF] alleges plenty of questionable behavior by the town's law enforcement officers -- something that explains the actions taken by the two officers involved in this controversial traffic stop. Here's what the Attorney General uncovered during the investigation of the Windsor PD:

Black drivers accounted for approximately 42% of the department’s traffic stops from July 1, 2020 through September 30, 2021 (810 of 1,907 stops.) During that time period, the Town stopped Black drivers between 200% and 500% more often than would be expected based on the number of Black residents in the town or county.

From July 1, 2020 through September 30, 2021, the Department searched more vehicles driven by Black drivers than White drivers, even though Black residents do not constitute the majority of the population of the Town or the Commonwealth.

Not only is there evidence of biased policing, there's evidence the Windsor PD misled its most direct oversight, the Windsor Town Council.

For many of the examined months, there was a significant discrepancy between the number of traffic stops and citations reported to town council and reported to the Virginia State Police for tracking and reporting purposes. In all instances the numbers reported to the Commonwealth were lower than those shared with town council, and the discrepancy has not yet been explained.

The lawsuit seeks an injunction barring the PD from engaging in discriminatory policing. It demands policy changes to ensure traffic stops are bias-free, mandates accurate reporting of use of force incidents, and order the PD to submit to third-party monitoring of its compliance with state and local laws, as well as the specifics of any order issued by the court handling this lawsuit.

The Town of Windsor has already responded. And it claims [PDF] AG Mark Herring is doing this for the clicks:

The decision by Attorney General Mark Herring to file a lawsuit against the Town of Windsor on the eve of the new year and just 17 days before he leaves office is clearly political.

[...]

Despite the Town’s cooperation and progress, the Attorney General’s office, just days later, issued an ultimatum demanding immediate action or the threat of litigation, knowing the Town Council would not meet again to address this until January 11 – a mere four days prior to Mr. Herring leaving office. Given that the Complaint cites questionable data on the quantity and nature of traffic stops and searches, as well as its reporting, the suit lacks any context as to what the Town has done over the past year to address any concerns. The Town is stunned that this suit was filed on December 30, just hours before Courts closed for the year.

[...]

Therefore, there was no need for Mr. Herring to file this lawsuit, except perhaps for the sake of headlines, which he will surely receive.

A government complaining about how another government entity engages in government business is pretty rich. Government officials wait until holiday weekends to dump bad news. Litigation almost always commences at the last minute, often just before the statute of limitations takes effect. Everything is political, even when everyone in political agencies claims it isn't.

But it's extremely disingenuous to claim this was done solely for the headlines. An actual investigation occurred and the results led the AG to the conclusion a lawsuit was needed to change the Windsor PD's evidently-biased policing. The results of this investigation will also aid Lt. Nazario's lawsuit against these officers, as he will now be able to point to a pattern and practice of targeting minorities.

The town says it "looks forward to a reasonable conversation" with AG Herring's successor. But its first response is anything but reasonable and suggests the town feels its police department doesn't need to be changed, much less subjected to more scrutiny. And that suggests any future conversations will be short on reasonableness and heavy on defensiveness.

Filed Under: bias, caron nazario, daniel crocker, mark herring, police, virginia, windsor, windsor police department

Senator Tillis Holds Secret Meeting With IP Maximalists To Discuss A Single US 'IP' Agency

from the that-would-be-a-problem dept

Senator Thom Tillis is chock full of bad ideas about copyrights and patents -- mostly focused on making things worse for the public by expanding the monopoly powers granted to patent and copyright holders. So I guess it comes as little surprise that he held a secret meeting that appears to have only been attended by copyright maximalists to talk about trying to merge the Copyright Office into the US Patent & Trademark Office.

In a previously unreported meeting Friday, staffers from the office of Sen. Thom Tillis, the ranking member of the Senate Judiciary Subcommittee on Intellectual Property, met with representatives from across the content industries to discuss consolidating America’s three main IP regulators into one sprawling, catch-all agency.

“I think we could look at the organizational structure and ask questions about what’s the most effective way of doing it,” Tillis told National Journal on Tuesday. “At the end of the day, I want a fair, predictable, and lean IP apparatus—whether it’s patents, trademarks, copyrights.”

Tillis spokesperson Adam Webb said in a statement that the senator “hosted initial meetings on creating a unified, independent intellectual-property agency and on how to resolve online copyright piracy.” Webb said 35 participants attended the two Friday meetings, which he stressed were preliminary in nature and not guaranteed to result in new legislation.

It seems weird that, if you were exploring such a thing that you wouldn't bring in folks outside of the copyright maximalist industries, but apparently that's of less interest to Tillis?

The idea of "consolidating" the Copyright Office into the PTO has long been a dream for many copyright maximalists -- mainly because they're extraordinarily upset that the Copyright Office is a part of the Library of Congress, and they hate the fact that the Librarian of Congress sometimes wants to actually live up to the mission of making sure that copyright is there to "promote the progress" of learning. They'd much rather it be connected with the USPTO, which is under the Commerce Department and clearly designed to be in the interests of the big companies that control it.

It's already kind of a travesty that the PTO is one agency for both patents and trademarks, since those two things serve extraordinarily different purposes. Trademarks, again, are supposed to be a form of consumer protection -- making sure that when you're buying something from a certain company, you're aware of who really made it, and aren't being tricked into buying a copycat. Patents, on the other hand, are supposed to be (though rarely are) about incentivizing innovation. Copyright is supposed to be for the encouragement of learning. It's just that over the centuries, certain industries have bastardized all three to pretend that they're about helping a few giant businesses collect as much monopoly rent as possible. Tillis shouldn't be helping that.

About the only reassuring quote in the piece comes from Mitch Glazier, who now runs the RIAA, but got his initial job at the RIAA just months after he snuck four words into an unrelated piece of legislation that effectively took away the ability of musicians to get control over their works (enabling the RIAA to have much greater control). In the article, Glazier worries that a consolidated agency would focus too much on patents at the expense of copyrights:

Glazier said his office is “agnostic” about the notion of a unified IP agency, but noted it could kick off a turf war between the three agencies. He also said a single agency could end up focusing largely on patents—far and away the greatest moneymaker—to the detriment of key copyright issues.

Still, there's literally no need for this move to happen at all, and I don't understand why Tillis is exploring the idea, nor why he is holding secret meetings with the copyright industry to try to get their buy in.

Filed Under: copyright, copyright office, hollywood, library of congress, maximalists, thom tillis, uspto
Companies: mpa, riaa

Maryland Court Says Baltimore Prosecutors Can't Hide Their 'Do Not Call' List Of Bad Cops From The Public

from the one-of-ten-BPD-cops-useless-in-court dept

Changes in law, court decisions, and transparency efforts have resulted in the public release of names of officers prosecutors consider too unreliable to ask to testify in court. Officers with histories of misconduct or perjury are placed on "do not call" lists by prosecutors who are supposed to hand this information over to criminal defendants.

The lists -- known by names referencing precedential decisions (Giglio, Brady) -- have historically been closely guarded by prosecutors. But that's no longer considered acceptable behavior in many parts of the country. Precedent creates an obligation that prosecutors are having a tougher time ignoring as police reform efforts continue to gain traction across the nation.

But are these records public records? Many prosecutors and police unions have argued they aren't. While they're ok with begrudgingly handing these over to criminal defendants, they appear unwilling to let the rest of the uncharged public know which officers are considered too problematic to be counted on in court.

Fortunately, the public is scoring a few wins in court over this issue, represented (so to speak) by journalists and transparency activists who seek these records with the intent of making them publicly available. The Maryland Court of Special Appeals has just handed one such win to the Baltimore Action Legal Team (BALT) which requested copies of the Office for the State's Attorney (SAO) "liar list" of Baltimore cops found to be too untrustworthy to be called on in court. (h/t FourthAmendment.com)

This loss for Baltimore PD opacity started as a temporary win for the department's bad cops. From the decision [PDF]:

Between December 2019 and January 2020, appellant Baltimore Action Legal Team (“BALT”) made three requests under the Maryland Public Information Act (“MPIA”) to appellee, the Office of the State’s Attorney for Baltimore City (“SAO”). BALT specifically requested that the SAO provide:

1. A list of 305 Baltimore City (hereafter, “City”) Police Department officers with questionable integrity, and supporting information, that Baltimore State’s Attorney Marilyn Mosby stated she maintained;

2. Records relating to any investigations of all City police officers that were closed in 2019 and any such investigations held open for over sixteen months;

3. Charges filed on January 30, 2020 regarding a specific City police officer and records relating to any open or closed investigations of that officer.

BALT also asked the SAO to waive the costs required to reproduce the records sought in requests #2 and #3. The SAO denied the request for the list of 305 officers in its entirety and did not respond to the fee waiver requests accompanying the other two inquiries. Instead, the SAO informed BALT that the estimated cost of production for the records in request #2 would be approximately $15,000 and would require over 438 hours of work, and the cost of production for the records in request #3 would be $3,000.

The lower court agreed with the SAO, finding that this list was exempt from disclosure under the personnel records exemption. The Appeals Court, however, says the list compiled by the SAO (rather than the Baltimore PD) is not a personnel record in the legal sense of the word. The list of 305 officers (roughly 10% of the Baltimore police force) can be publicly disclosed.

An agency cannot claim a personnel records exemption under the MPIA unless (1) the agency has supervisory authority both over the records and the person who is the subject of the records; and (2) the records contain what would be considered “personnel issues,” such as a performance rating, or, generally, “an employee’s ability to perform a job.” The record suggests that the SAO has generated the list, rather than the City’s police department. We understand from the State’s Attorney’s motion for summary judgment that the list was created from City police department’s Internal Affairs documents. Critically though, the internal affairs documentation—whatever an officer did to call into question their credibility—is not part of the list. Only the names of the officers the SAO has deemed compromised appear on the list.

[...]

Simply because an officer’s name appears on a list generated by the SAO does not mean that it is now a personnel record, based on the “commonly understood meaning of the term.” It seems to us that the SAO uses the list as a tool to ensure that prosecutions are not compromised by the testimony of officers whose veracity is questioned.

Neither can the SAO claim these are records that would jeopardize ongoing misconduct investigations or criminal proceedings against police officers if the list of names was revealed. The Attorney's Office apparently made no attempt to determine which officers on the list were currently under investigation. Instead, it chose to treat a narrow exemption like a blanket to shield these officers from BALT's encroaching sunlight. That hurts its case, says the court.

In this case, the SAO declined to disclose the names of the officers on the “do not call list,” by asserting that the disclosure would interfere “with a valid and proper law enforcement proceeding under GP § 4-351(b)(1).” In response, BALT asked whether all 305 officers were under investigation, to which they received no reply. In not responding, the SAO failed to “demonstrate that it legitimately was in the process of or initiating a specific relevant investigative proceeding.”

[...]

Based on the foregoing, we conclude that the trial court erred in prohibiting disclosure given that the SAO invoked a blanket exemption as though all 305 officers were under investigation. That simply was not demonstrated here. And even if the SAO had shown that it was actively investigating an individual police officer, the SAO has not demonstrated how they could have complied with the MPIA request by shielding that individual officer’s name from the list.

Neither are the records "attorney work product," as the SAO tried to claim. Again, the court says this is a narrow exemption from Maryland public records law, not a preemptive shield to be raised by an office that is hip-deep in litigation at any given time.

From our review of the record, we conclude that even though the SAO constantly faces the prospect of litigation, the “do not call” list was not necessarily created in response to the prospect of litigation. Rather, the list was created for the purpose of alerting prosecutors to the fact that a cohort of officers have questionable reputations and putting them on the witness stand to testify, or to base an investigation on a search warrant submitted by one of these officers, to cite two examples, would potentially jeopardize a prosecution. Consequently, we conclude that the “do not call” was not created in anticipation of litigation, but instead is used more as a tool that the SAO may use to assess the strength of a prosecution.

The win goes to Baltimore Action Legal Team. The records will be freed and the city of Baltimore will be paying BALT's legal fees. The police department's bad cops can no longer hide behind abused public records exemptions. If these officers are bad enough they can put prosecutions at risk, the public deserves to know who they are.

Filed Under: bad cops, baltimore, baltimore police, police, prosecutors, transparency

Court Orders Twitter Reveal Anonymous Tweeter Over Sketchy Copyright Claim, Because That Tweeter Won't Show Up In Court

from the not-how-it's-supposed-to-work dept

Back in November we wrote about a very bizarre attempt to abuse copyright law to uncover who was behind a Twitter account, @CallMeMoneyBags. That account tweeted out various things mocking and shaming various extremely wealthy people, including billionaire Brian Sheth, a private equity bro. Some of the tweets in the fall of 2020 lightly mocked Sheth, including suggesting potential infidelity. The images themselves appeared to be social media-type photos of young women (or possibly just one young woman).

Sometime later, an organization called "Bayside Advisory LLC" showed up, claiming to hold the copyright on those images, and demanding Twitter take down the images -- which the company did. However, Bayside also tried to use the more controversial DMCA 512(h) subpoena process to try to uncover who was behind the MoneyBags account. That raised red flags with the legal team at Twitter, which is always careful not to give up someone's identity unless absolutely required to by law. Twitter moved to quash the subpoena, suggesting that -- given all of the context -- it seemed most likely that the person behind this effort was Sheth, who was trying to uncover the identify of an anonymous critic on social media, and not for any legitimate copyright reason.

Bayside, for its part, insists that it has no connection to Sheth at all, though it does not identify on whose behalf it actually acts. The company only registered the copyright on those photos well after MoneyBags posted them, meaning there's no real value in suing (if the registration happens after the supposed infringement, then you're limited to "actual damages" which, here, would be nothing). The only real reason for issuing the subpoena is to find out who MoneyBags really is. Bayside also claims that it "advises and partners with creators, artists, entrepreneurs to protect, promote, and champion creative expression. Bayside owns a catalog of photographs (the photographs are only a small part of the catalog) to exploit for those purposes."

That would have been more convincing if there was a long record of Bayside LLC registering similar copyrights, but, as we noted in our original article, there is not. It registered the photos in question... and those were the only registrations by Bayside until well after it sought the subpoena, at which point is suddenly registered some other unpublished photos.

We were dismayed at the time that the court did not grant Twitter's motion to quash. Instead, it said that to do a full "fair use" analysis, it needed to hear from MoneyBags directly, and ordered Twitter to notify the user that s/he should file a declaration with the court about the use of the photos. Twitter did, apparently, send the info to MoneyBags, but MoneyBags (very unfortunately) chose not to file with the court (it's unclear if anyone is even checking the MoneyBags account any more as it hasn't posted in a while).

Therefore, the court has said that since it can't conduct the proper fair use analysis, Twitter has to reveal who is behind the account.

Here, the court need not decide whether it is appropriate to use fair use as a proxy for the First Amendment analysis in a copyright infringement case involving an anonymous speaker, or whether to instead use the Highfields standard. This is because the speaker fails to meet either test on the current record.

On November 4, 2021, the court issued an order stating that “it lacks a well-developed record on which to base any ruling” on the issue of fair use. Nov. 4, 2021 Order 2; compare In re DMCA, 441 F. Supp. 3d at 884 (conducting fair use analysis where “[t]he record is well developed, and neither side contends that any evidence material to the fair use inquiry is missing,” noting “the salient evidence is not meaningfully disputed.”). The court determined that evidence of “the user’s purpose and intended meaning” in posting the tweets, which is relevant to the first and third factors of the fair use test, “is likely available only from the individual(s) who posted the tweets.” Moreover, it concluded, Twitter’s contentions about the purpose of the tweets was speculative. Nov. 4, 2021 Order 3. The court also noted that it lacked sufficient information to “balance ‘the magnitude of the harms that would be caused to the competing interests by a ruling in favor of [Bayside] and by a ruling in favor of [Twitter and the user of the @CallMeMoneyBags account]’” to the extent such a balancing was necessary, again finding that Twitter’s assertions on that point were speculative. Id. (quoting Art of Living Foundation v. Does, No. 10-cv-05022 LHK, 2011 WL 5444622, at *4 (N.D. Cal. Nov. 9, 2011) (quoting Highfields, 385 F. Supp. 2d at 980)).

Therefore, the court ordered Twitter to immediately serve a copy of the November 4, 2021 Order and the parties’ briefing on the email address associated with the @CallMeMoneyBags account. The court gave the account user(s) until December 10, 2021 to make a special and anonymous appearance to file evidence regarding fair use and/or the harms that may result if the court denies the motion to quash. Nov. 4, 2021 Order 3-4. Twitter served the user(s) on November 8, 2021. [Docket No. 20.] No appearance has been made on behalf of any individual associated with the @CallMeMoneyBags account.

As noted, “the burden of proving fair use is always on the putative infringer.” Lenz, 815 F.3d at 1153 (quotation omitted). On the current record and solely for the purpose of determining whether this subpoena should be quashed or enforced, the court is unable to conclude that @CallMeMoneyBags’s use of Bayside’s copyrighted photos constituted fair use because the anonymous speaker did not augment the record in order to meet their burden. The first factor looks to “whether and to what extent the new work is ‘transformative.’” Campbell, 510 U.S. at 579. Relatedly, the third factor asks whether “the quantity and value of the materials used . . . are reasonable in relation to the purpose of the copying.” Id. at 586 (quotation marks and citation omitted). The tweets at issue consist of statements combined with Bayside’s photos along with hashtags that do not convey an obvious meaning. Without evidence regarding the purpose and meaning of the tweets, the court cannot say that @CallMeMoneyBags’s use of the photos was “transformative” or reasonable in relation to @CallMeMoneyBag’s purpose in posting the tweets. See, e.g., In re DMCA, 441 F. Supp. 3d at 884-85 (concluding that use of Jehovah’s Witness’s copyrighted materials was “transformative” given undisputed evidence that speaker used materials “for criticism and commentary in a manner fundamentally at odds with [the organization’s] original purpose,” placed materials “on a forum expressly dedicated to criticism of [the organization] by former members, succeeded in generating a number of comments” from other critics of the organization, “and declared that his sole purpose was to criticize the organization and spark discussion about it”).

Based on that lack of appearance, the court says that the "putative infringer has not met its burden of establishing fair use for the purpose of quashing the subpoena." And thus, Twitter must reveal who is behind the account.

This seems not just wrong on multiple levels, but dangerous. It means that the very wealthy can abuse copyright law to out anonymous critics in lots of cases, especially if those anonymous critics can't pay an expensive lawyer to explain the very basics of fair use to a court. The burden shifting here seems really, really wrong. It's an unfortunate result, and shows yet another way that copyright is used as a censorship tool to stifle and suppress criticism.

It's still not clear who is behind Bayside or exactly why they're doing this, but rest assured that this kind of abuse of copyright to intimidate and suppress criticism will not go unnoticed by others wealthy enough to abuse the law in similar ways.

Filed Under: anonymity, brian sheth, callmemoneybags, copyright, dmca, fair use, free speech, subpoena
Companies: bayside advisory, twitter

Daily Deal: The 2022 Premium CompTIA CyberSecurity And Security+ Exam Prep Bundle

from the good-deals-on-cool-stuff dept

The 2022 Premium CompTIA CyberSecurity and Security+ Exam Prep Bundle has 6 courses to help you prepare for the CompTIA certification exams. You'll learn about pen testing, risk management, how to scan for vulnerabilities, how to secure a corporate environment, and more. The bundle is on sale for $20.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Techdirt 2021: The Stats.

from the closing-the-books dept

Every year, a few days after New Years (once the data is truly complete), I try to do a post exploring some of the traffic patterns and comment details on Techdirt for the year. This year's will be a bit different on the traffic front, because at the end of last January, we took Google Analytics off the site, and that had been the tool we'd used to see where people were coming from and whatnot. Instead, this year for the details on where people are coming from and what technology they're using, we'll be using a combination of a self-hosted Matomo instance and Plausible Analytics (not self-hosted; though we're hoping to eventually switch to the self-hosted version). We ran all three solutions for one month before turning off Google Analytics, and the data roughly, though not exactly, matched (because all traffic numbers are fake and unreliable), but this year's info should be slightly different. As in the past, we're not reporting silly things like how much traffic we get, because (again), all those numbers are fake, due to dodgy tools and even dodgier bots and such. But we can get useful comparative data about where people are coming from and such.

Even though it relied on different analytics, if you'd like to see the older versions, here they are: 2020, 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011 and 2010.

The first thing we usually cover is where visitors are coming from -- and already we discover that with different tools, we get very different data. According to Plausible, our top five countries for visitors are the US at 70%, Canada at 5%, UK at 5%, Australia at 2% and India at 2%. Matomo has somewhat different results: US at 78%, UK at 6%, Canada at 3%, Australia at 2% and Germany at 1%. On Matomo, India actually comes in at number 15, rather than 5th on Plausible. Though Germany is 6th on Plausible. On Plausible the next four after Germany are France, Netherlands, Brazil and Sweden. On Matomo, the next five after Germany are France, Russia, Netherlands, Spain, and Sweden. Brazil, which came in 9th on Plausible shows up as 11th on Matomo. Russia, which shows up as 7th on Matomo is all the way down as 24th on Plausible!

I repeat: a lot of traffic numbers are garbage and no one knows anything! Last year we were surprised that Google Analytics said China was in our top 10, even though we had heard Techdirt was mostly blocked there. Matomo says that China gave us the 13th most visitors of any country, though Plausible says it's actually 42nd (though, it counts Hong Kong separately, and has that come 37th -- so perhaps if you combine the two...).

Moving on to what browsers people use, Chrome is still the leading tool for reading Techdirt. Matomo and Plausible seem to measure browser info in slightly different ways, but it does appear that somewhere around 45% of our traffic is from Chrome (Matomo breaks it down into different versions of Chrome) and somewhere between 25 and 32% from Safari. Firefox is somewhere between 8 and 12%. Interesting to note that most of the Safari traffic is from mobile (so, iOS) whereas most of the Chrome traffic is from a computer. There is still decent amount of mobile Chrome and desktop Safari, but it's a lot more of the alternative. Microsoft Edge is around 4% according to both platforms. DuckDuckGo's privacy browser is a new entrant this year, with both systems saying about 2% of our traffic is coming from there (which is cool to see). Both Opera and Samsung's browser get about 1% each. Matomo claims that there were 126 different browsers used to visit Techdirt last year, which is quite something.

In terms of operating systems, Windows at 32% beat out iOS at 26%, Android at 24% and Mac at 14%. Linux variations were about 3% and Chrome OS was a bit under 1%. The two analytics systems seem to agree that about 48% of our traffic was from desktops/laptops, with 52% coming from phones/tablets. Incredibly, a tiny fraction of people apparently visited Techdirt from gaming consoles, TVs, or car browsers (?!?).

Every year I'm interested in, generally speaking, where visitors are coming from. While other sites spent lots of time "gaming" social media sites for traffic, we've always avoided that. I'm not against getting such traffic, but I don't want to be reliant on it. So I'm always most interested in how much of our traffic is coming directly from people choosing to be here, and that continues to remain high, with 52% of our traffic coming from "direct" visits, 26.5% from search, only 14.2% from social media, and another 6.5% from other websites:

As for social media traffic, Twitter is the biggest single provider, with 55.6% of social media traffic coming from the bird site. Facebook provides 18.3% of the social media traffic, barely edging out Reddit by a barely noticeable number of visits. Hacker News comes in 4th at 6.3%. Everything beneath that is negligible, but if you must know, it's LinkedIn, YouTube, and Telegram after the top four.

Google (84%) provides the majority of our search traffic (again, which is 26% of our overall traffic), followed by DuckDuckGo (10%), Bing (3%) and Yahoo (1%). If you mash social and search together, Google provides us the most traffic, followed by Twitter, Reddit, DuckDuckGo, then Facebook, HackerNews and Bing.

And... now we get to the lists.

Top Ten Stories, by unique pageviews, on Techdirt for 2021:

1. As Predicted: Parler Is Banning Users It Doesn't Like
2. Not Easy, Not Unreasonable, Not Censorship: The Decision To Ban Trump From Twitter
3. Hello! You've Been Referred Here Because You're Wrong About Section 230 Of The Communications Decency Act
4. How The US Government Legally Stole Millions From Kim Dotcom
5. The Bizarre Reaction To Facebook's Decision To Get Out Of The News Business In Australia
6. Michigan State Police Officials Are Dodging Public Records Obligations By Using Encrypted Messaging Apps
7. The Neighbors Are Watching Via Surveillance Video
8. Techdirt Is Now Entirely Without Any Google Ads Or Tracking Code
9. Florida Sheriff's Office Now Notifying People It Will Be Inflicting Its Pre-Crime Program On Them
10. Appeals Court Tells Lying Cop No 'Reasonable' Officer Would Think It's OK To Tear Gas Journalists For Performing Journalism

So... there are some oddities and surprises in that list. Four out of our top ten stories... are actually not from 2021! In fact, three out of the top four are not from 2021. That's... weird! In the past, every so often we've had an older story slip into the top 10 list, but having four show up is very, very odd. In fact, the Parler story was also the number three story from 2020. It went a bit viral in January, when Parler got a lot of attention after being kicked off of Amazon and out of the various mobile app stores. The "Hello, You've Been Referred..." is not that surprising, as that's taken on a life of its own and people now regularly link people to it on social media. These days, almost every time I come across someone spouting some nonsense about publisher v. platform, I'm relieved to see someone has already linked to my post. Service journalism.

The Kim Dotcom story is... from 2015. But it has snuck into the top 10 list in the past. In 2018, it also made a surprise appearance. Dotcom has had a pinned post on his Twitter linking to that story for years, so whenever he goes viral, that story tends to go viral as well.

Now, the oddest one of all: the 7th ranking story, the Neighbors are Watching Via Surveillance Video... is from 2003. And, honestly, until I was going through the stats to put together this list, I had no idea that it somehow had received a flood of attention. I don't check stats that closely during the year, and am perplexed as to how or why this article from 18 years ago is suddenly in our top ten list. Here's the other oddity: as far as I can tell, it's not because of a bunch of traffic on a single day or two, but steady traffic from some sort of search (though it's not clear what keyword is leading people to it) every damn day of the year. And not just Google. The search referral to that one story matches our general breakdown: Google searches supplied 88% of the traffic to that story, DuckDuckGo supplied 7%, and Bing supplied another 2%. On an average day it doesn't get anywhere near the traffic of a new story, so I'd be unlikely to notice it. But it gets just enough traffic every single day that it's in our top 10! I also see that comments continue to pour in on that story, which now has over 650 comments (though not that many in 2021). It appears that this has been a low-level traffic collector for a while now... I mean, in some ways, the story is interesting, in that it was a very early reporting on neighbor's using surveillance cameras to help police -- something that is now happening regularly via Ring and Nest cameras and the like. But I will admit that I am at a complete and total loss as to how or why that story gets so much traffic every day.

2021's Top Ten Stories, by comment volume:

1. Not Easy, Not Unreasonable, Not Censorship: The Decision To Ban Trump From Twitter 679 comments
2. The Flopping Of Trump's Blog Proves That It's Not Free Speech He's Upset About; But Free Reach 473 comments
3. Texas Legislature Says You Can't Teach About Racism In Schools, But Social Media Sites Must Host Holocaust Denialism 458 comments
4. Judge Ignores First Amendment, Misreads Town Law, While Ordering Resident To Remove 'Fuck Biden' Signs 452 comments
5. Nintendo Killed Emulation Sites Then Released Garbage N64 Games For The Switch 427 comments
6. A Few More Thoughts On The Total Deplatforming Of Parler & Infrastructure Content Moderation 393 comments
7. Modder Solves 'GTA Online' Loading Time Problem, Gets Paid By Rockstar For It 346 comments
8. Changing Section 230 Won't Make The Internet A Kinder, Gentler Place 339 comments
9. Game Publishers: If Your DRM, Anti-Cheat Software Does Creepy Installs, Warn Your Customers First 314 comments
10. Florida Steps Up To Defend Its Unconstitutional Social Media Law And It's Every Bit As Terrible As You'd Imagine 288 comments.

Huh. So the first few on that list are perhaps predictable, but then it goes off in directions I wouldn't have expected. Once again, we see little overlap between the stories that get the most traffic and those that get the most comments, which always strikes me as worth noting (people always assume otherwise).

Okay, okay, I know what people are really waiting for are the comment leader boards...

2021 Top Commenters, by comment volume:

1. PaulT: 3419 comments
2. Stephen T. Stone: 2918 comments
3. Scary Devil Monastery: 2636 comments
4. That One Guy: 2334 comments
5. Lostinlodos: 1851 comments
6. That Anonymous Coward: 1301 comments
7. Toom1275: 1185 comments
8. Samuel Abram: 1172 comments
9. tp: 977 comments
10. ECA: 976 comments

The top four people are the same top four as last year, though in different order. PaulT returns to the top spot he last held in 2018. A couple of "new entrants" into the list this year, from two individuals who seem to spend more time arguing with the long time commenters, which seems to have contributed to their comment totals...

Top 10 Most Insightful Commenters, based on how many times they got the light bulb icon: Parentheses shows what percentage of their comments got the lightbulb

1. PaulT: 907 comments (26.5%)
2. That One Guy: 905 comments (38.8%)
3. Stephen T. Stone: 742 comments (25.4%)
4. Scary Devil Monastery: 254 comments (9.6%)
5. That Anonymous Coward: 246 comments (18.9%)
6. Toom1275: 232 comments (19.6%)
7. Mike Masnick: 201 comments (45.6%)
8. Bloof: 191 comments (43.12%)
9. Samuel Abram: 147 comments (12.5%)
10. Thad: 118 comments (26.5%)

Those top three really dominated the leadership boards again, as they've done for a few years now. Thank you for contributing such regularly insightful comments.

Top 10 Funniest Commenters, based on how many times they got the LOL icon: Parentheses shows what percentage of their comments got the LOL icon

1. Stephen T. Stone: 91 comments (3.1%)
2. That One Guy: 56 comments (2.4%)
3. That Anonymous Coward: 38 comments (2.9%)
4. Thad: 31 comments (7.0%)
5. Toom1275: 28 comments (2.4%)
6. Bloof: 25 comments (5.6%)
7. PaulT: 21 comments (0.6%)
8. Samuel Abram: 18 comments (1.5%)
9. Jojo 13 comments (12.4%)
10. Norahc: 11 comments (10.4%)

As always, we've seen that it's much, much more difficult to get the coveted "funny" vote. Also, for the previous two years, we had noted that Norahc had come on strong as someone who commented less frequently than others, but had a really high percentage of comments voted as funny. This year, Norahc's percentage of funny comments was even higher than the previous two years, but... newcomer Jojo stole the show by edging out Norahc with an even higher percentage of the funny vote.

And, with that, the 2021 books are closed, and 2022 is well underway. As noted in my final post of the year for 2021, we've got some decently big changes coming up soon, which should make the comments an even more fun place, so stay tuned...

Filed Under: 2021, comments, stats, techdirt

FCC Revisits Transparency 'Nutrition Label' For Broadband

from the making-it-clear-Comcast-has-all-the-power dept

For years we've noted how broadband providers impose all manner of bullshit fees on your bill to drive up the cost of service post sale. They've also historically had a hard time being transparent about what kind of broadband connection you're buying. As was evident back when Comcast thought it would be a good idea to throttle all upstream BitTorrent traffic (without telling anybody), or AT&T decided to cap the usage of its "unlimited" wireless users (without telling anybody), or Verizon decided to modify user packets to track its customers around the internet (without telling anybody).

Back in 2016 the FCC eyed the voluntary requirement that broadband providers be required to provide a sort of "nutrition label" for broadband. The idea was that this label would clearly disclose speeds, throttling, limitation, sneaky fees, and all the stuff big predatory ISPs like to bury in their fine print (if they disclose it at all). This was the example image the FCC circulated at the time:

The idea never fully came to fruition under Obama-era FCC boss Tom Wheeler, and was scuttled by the Trump FCC for what should be obvious reasons. Biden's FCC is now thinking about voting to revisit the idea:

"FCC Chair Jessica Rosenworcel is finally moving ahead with a vote planned for Jan. 27 on “a proposal to establish simple-to-understand broadband labels, whereby internet providers would disclose accurate information about prices, introductory rates, data allowances, and broadband speeds,” she wrote in a blog post Wednesday."

The problem, of course, is that the FCC is currently (and quite intentionally) vote gridlocked at 2-2 commissioners thanks to the rushed appointment of Trump ally Nathan Simington last year, and the GOP (read: AT&T, Comcast and Verizon) effort to block or at least delay the appointment of Biden FCC nominee Gigi Sohn. It's no guarantee that GOP Commissioners like Brendan Carr would ever sign off on such a plan, given he rarely wanders out of synchronized lockstep with the interests of companies like AT&T, Comcast or Verizon (who prefer less transparency for obvious reasons).

If the proposal mirrors the Wheeler one, it will be voluntary...meaning ISPs could just ignore it. That's likely to get buried in coverage. The other problem, as some Twitter observers were quick to note, is that a label transparently informing you that you're being ripped off isn't of much use if you're one of the 83 million Americans currently living under a broadband monopoly. As in, it's maybe good to have more transparency into what you're buying, but its value is limited if you have no alternative ISPs to switch to once gifted with that knowledge:

Having actual competition in many of these markets would force ISPs to avoid nickel and diming customers in the first place. In fact, customer service complaints, privacy violations, net neutrality violations, slow speeds, and high prices would all miraculously improve if ISPs faced a meaningful, competitive penalty for them. But with so many U.S. residents living under a monopoly (usually Comcast or Charter), there's simply no penalty. Tack on regulatory capture and a corrupt Congress, and penalties for bad behavior of any kind are hard to come by if you're a giant regional telecom monopoly.

This comes back to my complaint that even well intentioned U.S. telecom regulators never seem willing to target the real root of the U.S. broadband problem: regional monopolization and the state and federal corruption that allows it. Not only do regulators not take aim at this problem, they'll routinely never mention it. You'll routinely watch U.S. regulators and politicians (and by proxy much of the press) talk vaguely about the "digital divide" or "homework gap" as this entirely-causation-free thing, but they'll just completely ignore acknowledging that the underlying problem has been caused by letting telecom giants run amok for 30 years, crushing healthy competition underfoot.

This sort of "discursive capture," as academics like Victor Pickard call it, is a sort of side effect companion of regulatory capture. If you simply refuse to acknowledge that rampant monopolization, mindless consolidation, and limited competition are the core problems (and in the case of U.S. broadband that's pretty much indisuptable), you don't have to embrace policies that challenge the politically powerful and actually address the problem. So what you wind up getting are policymakers who just throw more money at the problem, or apply policy band aids that don't address the underlying dysfunction.

We won't fix U.S. broadband until we confront the regional monopolies and duopolies, and the state and federal corruption that shield them from accountability. But a company like AT&T isn't just politically powerful in DC (it routinely is literally allowed to write state and federal law), they're bone-grafted to our domestic surveillance apparatus, allowing them to generally (with only the smallest of occasional exemption) face no accountability for thirty-five years of anti-consumer, anti-competitive behavior or endless efforts to rip off the federal government.

Filed Under: competition, fcc, nutrition label, truth in advertising