In-N-Out Burger Continues Suing Australian Burger Slingers Despite Having No Presence In The Country Other Than Popups

from the down-n-out dept

For this post, we're going to need to provide some context when it comes to In-N-Out's fraught relationship with the entire country of Australia. The famous burger chain based here in America has made a habit of suing Australian entities that sell burgers using the same or similar names over trademark rights. If you're not familiar with the history here, that may not strike you as particularly noteworthy, especially given that some of the sued entities in question very much do use names and branding that serve as at least an homage to In-N-Out. The problem here is that In-N-Out has basically no presence in Australia. The company has no storefronts or brick and mortar businesses in Australia. As in... at all. Instead, the company has made a habit of doing pop-up restaurants in the country once every three years or so. Why? Well, because of a provision in Australian trademark law that allows this to satisfy the use-it-or-lose-it nature of trademark protection.

In other words: In-N-Out has no real presence in Australia, has never shown any indication of having a real presence in Australia, and simply uses these once-in-a-while pop-up locations solely to keep its trademark registrations active.

This has continued to the present, where In-N-Out is yet again suing another entity for violating the trademarks it's just barely using in Australia.

US burger giant In-N-Out has accused an Australian business of engaging in misleading or deceptive conduct and trademark infringement by selling burgers and fries on three delivery services as “In & Out Aussie Burgers”.

The burger chain is suing Rich Asians Pty Ltd and businessman Puneet Ahori in the Federal Court, alleging the operator passed itself off as In-N-Out when it sold food on Uber Eats, DoorDash and Menulog in at least four locations in Queensland.

Let's get one thing out of the way as a matter of throat-clearing: Rich Asians Pty Ltd was absolutely using deceptively similar trade dress and name to In-N-Out. After a cease and desist was sent, the company put new branding in place, changing the logo so as not to be so obvious.

On Wednesday, barrister Megan Evetts – appearing for the American burger chain – said the Australian restaurants initially used the name “In-N-Out Aussie Burgers”, but when a cease and desist letter was sent the first part of the name was changed to “In & Out”.

She said the delivery listings previously used an “exact copy” of the American In-N-Out logo, and that had now been changed to a logo which still includes an arrow.

Which gets us to the present, where the logos are fairly different -- arrow use not withstanding -- the offering name of "In & Out Aussie Burgers" is somewhat different, and In-N-Out is claiming that the confusion with the public is resulting in "negative reviews" which is effecting the American burger chain.

Which, again, is the entire problem. In-N-Out does not have any actual Australian presence. Much to the annoyance of Australians, it seems, given that there appears to be a healthy appetite for the chain's offerings in the country, such that these so-called knockoffs are selling burgers. So, it's not that In & Out Aussie Burgers isn't clearly looking to trade off of the fame of In-N-Out, because it absolutely is doing that. The question is why In-N-Out should have any say in the matter given the way it is perverting the trademark laws of Australia just to keep its marks in a marketplace it has no real intention of serving.

Filed Under: australia, burgers, pop-ups
Companies: in-n-out, rich asians pty ltd

Australian Court Ridiculously Says That AI Can Be An Inventor, Get Patents

from the i'm-sorry-dave,-you-shouldn't-do-that dept

There have been some questions raised about whether or not AI-created works deserve intellectual property protection. Indeed, while we (along with many others) laughed along at the trial about the monkey selfie, we had noted all along, that the law firm pushing to give the monkey (and with it, PETA) the copyright on the photo was almost certainly trying to tee up a useful case to argue that AI can get copyright and patents as well. Thankfully, the courts (and later the US Copyright Office) determined that copyrights require a human author.

The question on patents, however, is still a little hazy (unfortunately). It should be the same as with copyright. The intent of both copyrights and patents is to create incentives (in the form of a "limited" monopoly) for the creation of the new creative work or invention. AI does not need such an incentive (nor do animals). Over the last few years, though, there has been a rush by some who control AI to try to patent AI creations. This is still somewhat up in the air. In the US, the USPTO has (ridiculously) suggested that AI created inventions could be patentable -- but then (rightfully) rejected a patent application from an AI. The EU has rejected AI-generated patents.

Unfortunately, it looks like Australia has gone down the opposite path from the EU, after a court ruled that an AI can be an inventor for a patent. The case was brought by the same folks who were denied patents in the EU & US, and who are still seeking AI patents around the globe. Australia's patent office had followed suit with its EU & US counterparts, but the judge has now sent it back saying that there's nothing wrong with AI holding patents.

University of Surrey professor Ryan Abbott has launched more than a dozen patent applications across the globe, including in the UK, US, New Zealand and Australia, on behalf of US-based Dr Stephen Thaler. They seek to have Thaler’s artificial intelligence device known as Dabus (a device for the autonomous bootstrapping of unified sentience) listed as the inventor.

Honestly, I remain perplexed by this weird attempt to demand something that makes no sense, though it seems like yet another attempt to scam the system to make money by shaking others down. Once again, AI needs no such incentive to invent, and it makes no sense at all to grant it patents. An AI also cannot assign the patents to others, or properly license a patent. The whole thing is stupid.

It is, however, yet another point to show just how extreme the belief that every idea must be "owned" has become. And it's incredibly dangerous. Those pushing for this -- or the courts and patent offices agreeing with this -- don't seem to have any concept of how badly this will backfire.

And, of course, the reality underlying this, which only underscores how dumb it is, the AI isn't actually getting the patent. It would go to the guy who "owns" the AI.

Beach said a non-human inventor could not be the applicant of a patent, and as the owner of the system, Thaler would be the owner of any patents that would be granted on inventions by Dabus.

At least some people are recognizing what a total clusterfuck it would be if AI-generated patents were allowed. The Guardian quotes an Australian patent attorney, Mark Summerfield, who raises just one of many valid concerns:

“Allowing machine inventors could have numerous consequences, both foreseeable and unforeseeable. Allowing patents for inventions churned out by tireless machines with virtually unlimited capacity, without the further exercise of any human ingenuity, judgment, or intellectual effort, may simply incentivise large corporations to build ‘patent thicket generators’ that could only serve to stifle, rather than encourage, innovation overall.”

Unfortunately, as the article notes, it's not just Australia making this dangerous decision. South Africa just granted DABUS a patent last week as well.

Filed Under: ai, australia, dabus, incentives, monkey selfie, patent law, patents

As Predicted, Smaller Media Outlets Are Getting Screwed By Australia's Link Tax

from the exactly-as-we-warned dept

Ever since the giant news organizations, led by Rupert Murdoch's News Corp., began pushing the ridiculous idea of forcing Google and Facebook (and often just Google and Facebook) to pay a "link tax," we've been pointing out that while this might be a windfall of free money for the news giants, small news organizations (like, um, us) would likely get totally screwed over. With Australia leading the charge of silliness and passing its link tax, we're discovering that our predictions were exactly correct.

The big Australian publishers, News Corp. and NINE, are making out like bandits, while the smaller publications? Not so much.

A long-term commercial deal between Facebook and Google and Guardian Australia is expected to be completed in a matter of days, adding to a raft of agreements struck between large tech companies and major media outlets since February. While companies like Nine Entertainment Co, News Corp Australia and Seven West Media are already implementing plans off the back of the deals, there is increasing concern among smaller companies that they still have not been remunerated fairly.

Of course, this isn't really surprising. In fact, the real worry should be that the administrative costs for the internet companies to have to figure out how to compensate smaller publishers is so unworthy of the hassle, that those smaller publications will just start to be excluded en masse from Google and Facebook, once again serving the interests of the largest publishers, and not actually helping the cause of journalism at all.

Filed Under: australia, link tax, rupert murdoch, wealth transfer
Companies: facebook, google, news corp.

Australian Official Admits That Of Course Murdoch Came Up With Link Tax, But Insists The Bill Is Not A Favor To News Corp.

from the did-he-just-say-that-out-loud? dept

Earlier this year, we wrote a lot about the ridiculous anti-open internet Australian link tax that is now being pushed elsewhere around the globe. Anyone paying attention to the details knew that it was extreme crony capitalism at work, with the government forcing one set of massive companies (namely, Facebook and Google) to pay another set of massive companies, led by Rupert Murdoch's News Corp and Nine. For all the talk of how big tech companies are "monopolies," if you look at Australia's news companies, it's considered among the most concentrated in the world, and has been quite profitable for the likes of Murodch.

And while defenders of the bill insist (incorrectly) that the bill is not a link tax, but is merely a "competition bill" to help those few giant newspaper companies "better negotiate" with the giant internet companies, that's bullshit for two reasons. First, it's a "negotiation" to pay for links, and no one should ever have to pay to link to some other site. That's just fundamentally against the concept of an open internet. Second, it's no real negotiation because if Facebook and Google fail to agree to a deal that satisfies the Aussie media bosses, the government can step in and force an agreement on them.

Lots of people -- including those in Australia -- noted that this all seemed like a scheme to make Rupert Murdoch richer. And now the Australian competition official, Rod Sims, who "oversaw drafting of the law" has flat out admitted that the whole thing was Murdoch's idea in the first place, though he insists it's "extremely strange" that anyone thinks it's a favor to Murdoch.

Australian Competition and Consumer Commission (ACCC) chair Rod Sims, who oversaw drafting of the law, acknowledged the negotiating system was proposed by the Rupert Murdoch-controlled publisher but said all major media operators in the country supported it.

I mean, yeah, of course they supported it. Because it's the government forcing other companies to give them free money in response to their own failures to innovate. Why wouldn't they support it?

It is true that Google and Facebook are bigger than News Corp., which is the point that Sims really really wants to focus on. But that doesn't even touch on whether or not it's appropriate to force one set of companies to pay for something that should be free (linking), to another set of companies that are still making a shit ton of money on their own.

"News Corp is 1% the size of Google. News Corp is one of four main media companies (in Australia). It's very likely not the one with the biggest reach. I just think this is a line put out by Google," Sims added.

"There were many people giving us ideas. News Corp was but one. This whole notion that this is about News Corp is extremely strange."

You literally just admitted that the idea came from News Corp! It wasn't "a line put out by Google." It was you, who just admitted what was obvious to anyone who's been paying attention to Murdoch for years. After all, Murdoch has been publishing op-eds (in his own company's publications, of course), demanding Facebook and Google pay him for years. It's not like he made it a secret.

Can you make an argument that Google and Facebook are too powerful? Sure, absolutely. But, can you then make the argument that these companies which found a way to build internet services billions of people like... should be forced to pay for Murdoch's brand of propaganda, despite there being no fundamental reason that he deserves any of that money? Not unless you want people to think you're in Murdoch's pocket.

Filed Under: australia, competition, link tax, news organizations, rod sims, rupert murdoch
Companies: facebook, google, news corp., nine

FBI, Australian Police Ran A Backdoored Encrypted Chat Service For Three Years

from the we've-got-a-server-on-the-inside-[wink] dept

Recently unsealed documents have revealed the FBI and the Australian Federal Police ran a backdoored encrypted communications service for more than three years, resulting in dozens of arrests and several large drug busts. Here's a brief summary via Joseph Cox for Motherboard.

For years the FBI has secretly run an encrypted communications app used by organized crime in order to surreptitiously collect its users' messages and monitor criminals' activity on a massive scale, according to a newly unsealed court document. In all, the elaborate operation netted more than 20 million messages from over 11,800 devices used by suspected criminals.

This honeypot/chat app went into development following law enforcement's takedown of other encrypted phone providers like Phantom Secure and Sky Global. According to the unsealed warrant [PDF] targeting a Gmail account of a suspect, the backdoored communications offering was the direct result of the indictment of Vincent Ramos, the CEO of Phantom Secure.

After Ramos was arrested, San Diego FBI agents recruited a Confidential Human Source (“CHS”) who had been developing the “next generation” encrypted communications product, poised to compete for market share against established hardened encrypted device competitors. At the time, the void created by Phantom Secure’s dismantlement provided a new opportunity for criminal users to switch to a new, secure brand of device. The CHS previously distributed both Phantom Secure and Sky Global devices to TCOs [transnational criminal organizations] and had invested a substantial amount of money into the development of a new hardened encrypted device. The CHS offered this next generation device, named “Anom,” to the FBI to use in ongoing and new investigations. The CHS also agreed to offer to distribute Anom devices to some of the CHS’s existing network of distributors of encrypted communications devices, all of whom have direct links to TCOs.

ANoM was first distributed to criminals in Australia by the FBI's source. But not before both the FBI and AFP added interception capabilities.

The FBI opened a new covert investigation, Operation Trojan Shield, which centered on exploiting Anom by inserting it into criminal networks and working with international partners, including the Australian Federal Police (“AFP”), to monitor the communications. Before the device could be put to use, however, the FBI, AFP, and the CHS built a master key into the existing encryption system which surreptitiously attaches to each message and enables law enforcement to decrypt and store the message as it is transmitted. A user of Anom is unaware of this capability. By design, as part of the Trojan Shield investigation, for devices located outside of the United States, an encrypted “BCC” of the message is routed to an “iBot” server located outside of the United States, where it is decrypted from the CHS’s encryption code and then immediately re-encrypted with FBI encryption code. The newly encrypted message then passes to a second FBI-owned iBot server, where it is decrypted and its content available for viewing in the first instance.

The investigation began in Australia with the AFP intercepting messages, utilizing the expanded powers given to it by 2018's Telecommunications and Other Legislation Amendment (TOLA) to secure permission to intercept every communication carried by the ANoM devices. But the permission it received had limits. It was only able to "discuss generally" the content of the intercepted communications, rather than share them directly with the FBI.

As more devices made their way into the hands of suspected criminals, the FBI began performing its own interceptions. But it didn't do it directly. Instead, it asked an unnamed third country to perform the interception for it with the understanding it would hand over intercepted communications to the FBI.

[T]he FBI itself was not yet reviewing any of the decrypted content of Anom’s criminal users. Also by summer of 2019, the investigative team engaged representatives from a third country to receive an iBot server of its own and obtain the contents of communications occurring between Anom users… The third country agreed to obtain a court order in accordance with its own legal framework to copy an iBot server located there and provide a copy to the FBI pursuant to a Mutual Legal Assistance Treaty (“MLAT”). Unlike the Australian beta test, the third country would not review the content in the first instance. FBI geo-fenced the U.S., meaning that any outgoing messages from a device with a U.S. MCC would not have any communications on the FBI iBot server.

[...]

In October 2019, the third country obtained a court order which enabled the copying of the iBot server and the receipt of its contents every two to three days. The initial MLAT between the U.S. and the third country authorized FBI to receive data from October 7, 2019, through January 7, 2020. [...]

Since October 2019, the third country has obtained additional court order pursuant to its own laws to copy the iBot server and the United States has obtained the server data pursuant to additional MLATs. The third country provides Anom server data to the FBI every Monday, Wednesday, and Friday, and will continue to do so until the expiration of the third country’s court order on June 7, 2021. This data comprises the encrypted messages of all of the users of Anoms with a few exceptions (e.g., the messages of approximately 15 Anom users in the U.S. sent to any other Anom device are not reviewed by FBI).

The 15 or so users in the US were monitored by the Australian Federal Police for "any threats to life" and this information "shared generally" with the FBI. Once this was all in place, the FBI was soon swimming in intercepted messages from all over the world.

Since October 2019, the FBI has reviewed the content from the iBot server in the third country pursuant to the MLAT. They have translated the messages (where necessary and where translations are available) and have catalogued more than 20 million messages from a total of 11,800 devices (with approximately 9000 active devices currently) located in over 90 countries.

The affidavit notes that most of ANoM's users reside in Serbia, Germany, Netherlands, Spain, and Australia. Other than Australia, no other country (or their applicable laws/legal processes) are discussed.

There's a whole lot of criminal activity being discussed using these devices. And not all of it is directly drug-related.

[T]he review of Anom messages has initiated numerous high-level public corruption cases in several countries. The most prominent distributors are currently being investigated by the FBI for participating in an enterprise which promotes international drug trafficking, money laundering, and obstruction of justice.

[...]

From those messages, more than 450,000 photos have been sent detailing conversations on other encrypted platforms discussing criminal activity, cryptocurrency transactions, bulk cash smuggling, law enforcement corruption , and self-identification information.

Yep. Law enforcement corruption.

Information reviewed on the platform has revealed law enforcement sensitive information passed to TCOs, such as reports and warrants. TCOs have also been notified of anticipated enforcement actions against the TCO or other criminal associates.

This multi-national investigation shows it's still possible to take down criminal organizations despite their use of encrypted communications. One solution for law enforcement appears to be to "roll your own" -- one that allows investigators to listen in on conversations as they happen.

Filed Under: australia, backdoor, encrypted chat, encryption, fbi, honeypot
Companies: anom

Australian Crime Commission: Only Criminals Use Encrypted Communications

from the stupefying-is-the-new-anti-encryption-normal dept

Well, someone finally said the quiet part loud: some government officials actually believe the only people who need, want, or use encryption are criminals. Here's Asha Barbaschow with the "encryption is for criminals" news at ZDNet.

The Australian Criminal Intelligence Commission (ACIC) believes there is no legitimate reason for a law-abiding member of the community to own or use an encrypted communication platform.

"These platforms are used almost exclusively by SOC [serious and organised crime] groups and are developed specifically to obscure the identities of the involved criminal entities and enable avoidance of detection by law enforcement," the ACIC declared. "They enable the user to communicate within closed networks to facilitate highly sophisticated criminal activity".

This is part of the ACIC's comments [PDF] on proposed surveillance legislation that would grant Australian law enforcement new powers to disrupt data transmissions, surveil network activity, and engage in takeovers of targeted accounts. Here's the money shot:

ACIC observation shows there is no legitimate reason for a law-abiding member of the community to own or use an encrypted communication platform.

Well... holy shit. That's a take.

The ACIC believes today's criminals are too powerful and law enforcement too poorly-equipped. According to the Commission, criminals are winning the tech war.

The encryption and anonymisation that underpins the Dark Web and encrypted communications has challenged existing powers and allowed serious and organised crime (SOC) groups and individuals to more effectively conceal their criminal activity. In particular, the networks established on the Dark Web and via encrypted communications have provided criminals with platforms to easily and more confidently communicate anonymously about, and obfuscate, their serious criminal activities.

And yet, criminals continue to be prosecuted and criminal activities disrupted. But the successes aren't enough. The Commission apparently won't be happy until all criminal activity ceases.

The electronic surveillance powers currently available to the ACIC, while relied upon for investigating many aspects of criminal behaviour online and criminal use of encrypted communications, are not sophisticated enough to identify and disrupt the totality of activities SOC entities are undertaking through the use of modern anonymising technologies to conceal their identities, their associate’s identities and the illegal activities being undertaken by the network of individuals.

I've got bad news for law enforcement and the Commission: no matter what steps are taken and how many innocent people are victimized by expansions of government power, it will still be impossible to "disrupt the totality" of illegal activity. Sophisticated criminal organizations engaged in crime long before encryption was readily available and found creative ways to hide their misdeeds from investigators. It's not going to change just because no one -- not even innocent people who would like to protect their data and personal information from criminals -- has access to encryption.

The ACIC's broad declaration that no one has a "legitimate reason" to utilize encrypted communication platforms is at odds with the paragraph directly preceding this truly baffling assertion.

Encryption and anonymising technologies have a valuable role in protecting the privacy and data of Australians. As such, the ACIC notes new powers cannot be exclusively focused on subverting encryption and anonymising technologies.

I'm not sure how you reconcile these two statements. And apparently the ACIC doesn't know either, because it simply claims no non-criminal would need encrypted communications and immediately moves on to the discussion of the new warrant powers being proposed.

This is a horrifyingly ignorant claim for a government commission to make. The worst aspect is that someone with the power to write laws is going to believe the ACIC. Those who already believe (without evidence) that encrypted communications are only used by criminals are going to accept this assertion as evidence, even if the ACIC can't even be bothered to back up its own claim with any data or research. "Based on observation" is meaningless if the Crime Commission does nothing but observe criminal activity. This is stupid. And it would be laughable if it weren't so dangerous.

Filed Under: acic, australia, encryption, going dark

If You're Going To Defend A Satirical Song From A Copyright Lawsuit, Don't Try A Bunch Of Stupid Alternative Arguments First

from the bad-idea dept

Australian mining billionaire and former politician Clive Palmer has been hit with a $1.5-million judgement over unauthorized use of the song "We're Not Gonna Take It" by Twisted Sister. The suit was brought by Universal Music after, as part of a 2019 political campaign, Palmer made videos using a modified version of the song with the lyrics "Australia ain’t gonna cop it, no Australia’s not gonna cop it, Aussies not gonna cop it any more". Setting aside the rather questionable scansion, it's a pretty obvious modification of the famous song, giving it at least a chance of qualifying for the fair dealing exception for parody and satire that exists under Australian copyright law. But in a ruling today the court has rejected that argument entirely:

Justice Katzmann described the argument that the UAP works were for the purpose of satire as "ambitious, to say the least".

At first blush, this seems insane when the song is so obviously an attempt at some kind of satire or parody. But the background of the case shows why the court reached this decision — because Palmer originally tried out a bunch of different (and pretty crazy) arguments. First, he denied that his lyrics were even based on the song they are so obviously based on:

Mr Palmer was accused of lying during his evidence when he appeared before the court in October.

He claimed his lyrics, which included "Australia ain't gonna cop it", had nothing to do with the metal song but were inspired by a similar line in the 1976 film Network.

Justice Katzmann said that suggestion "appeared to take everyone else in the virtual courtroom by surprise".

Mr Palmer said he couldn't provide the notepad he originally scrawled his ideas on because it had been thrown out by his staff.

The judge was understandably extremely unimpressed by this, calling it "ludicrous" and "fanciful", especially when it was known that Palmer had sought a license originally:

But the trial also heard a representative for Palmer had originally sought copyright approval from Universal before baulking at the $150,000 fee.

In a scathing judgement, Katzmann rejected Palmer’s claims, finding that it was “ludicrous” of the mining billionaire to suggest his song was “created independently” of the Twisted Sister hit.

She found him to be “a most unimpressive witness” and that his evidence was “at times incredible”. She said Palmer gave “false evidence” during the trial including “concocting a story to exculpate himself”, indicating “that the need for both punishment and deterrence is high”.

Palmer's lawyers also threw in an attempt to invalidate the copyright on the Twisted Sister song for lack of originality, on the basis that it is similar to the Christmas carol O Come, All Ye Faithful. Only after all these arguments failed did Palmer invoke a fair dealing defense for parody and satire, which certainly explains the judge's characterization of it as "ambitious".

So while Palmer has nobody to blame but himself and his lawyers for this outcome, it's unfortunate for the rest of us that all their bumbling resulted in the fair dealing argument being so wholly and rapidly rejected. Twisted Sister's Dee Snyder has been loudly celebrating the win, after having appeared at one of the hearings last year to explain how Palmer's version "misrepresented the message" of the song and was "not good for my heavy metal image". But copyright isn't about protecting a musician's image, and parody and satire exceptions exist precisely to allow people to change the message of a work, which is a strange thing to describe as "misrepresentation" — and they don't just apply to people who change the message to something that the original artist (or anyone else) likes or approves of, as much as I can understand the frustration of having someone like Palmer use your work for his own political advancement.

It's impossible to say for certain whether Palmer's song would have qualified under Australia's fair dealing exceptions — as is so often the the case, they are narrower than they should be and leave a lot up to the judge's artistic discretion — but it would have been a lot better to get a ruling with an untainted exploration of this argument which is so obviously the most relevant one, and the one that should have been the focus of the case from the start.

Filed Under: australia, clive palmer, copyright, dee snyder, fair dealing, public domain, satire, twisted sister, we're not gonna take it

Microsoft Attacks The Open Web Because It's Jealous Of Google's Success

from the stop-it dept

Lots of attention has been paid to the mess down in Australia with its news link tax "bargaining code", and Facebook's response to it, including the eventual caving. So now both Google and Facebook have effectively agree to pay a tax to Australia's largest media companies... for daring to send them free traffic. It's the most bizarre thing in the world. Imagine if every time TV stations ran an advertisement, they also had to pay the advertiser. That's what this is.

However, we should focus in a bit on Microsoft's role in all of this. First, before Google agreed to its deal and was threatening to shut down news links in Australia, Microsoft stepped in and said it would gladly support the law. This was so transparently greedy of the company. Basically, Microsoft has realized that it's failure to actually be able to compete in the marketplace means that it wants to support this kind of law knowing that one of two things will happen: (1) Google will bail out of a market, leaving it open to Microsoft or (2) it'll just cost its competitor Google a lot of money.

The fact that it also fucks with the basic concept of the open web and not having to pay to link doesn't seem to enter into Microsoft's calculus at all. This takes Microsoft back to the shameful era in which it paid some godawful amount of money to political trickster Mark Penn not to help Microsoft better compete, but to simply attack Google like a political candidate. This is classic political entrepreneurship rather than market entrepreneurship. It's a sign of failure, when you're not trying to actually innovate, but simply abusing the political process to hamstring competitors.

But, in this case, it's even worse, because it's not just Google and Facebook that get screwed, but the entire concept of the open web.

And it gets worse. Microsoft seems so positively giddy about how this all worked out in Australia, that it's now taken the campaign global. Microsoft's President, Brad Smith wrote a blog post calling for this policy to be adopted elsewhere. Incredibly, Smith seems to argue that the attack on the Capitol might not have happened if Google and Facebook were taxed this way globally. The whole thing is just... so obnoxiously dishonest. It bemoans the loss of "professional journalism" and blames it all on social media.

But that's garbage. Multiple studies have shown that Fox News was a bigger problem in spreading disinformation than social media. And, remember, that Fox News boss Rupert Murdoch is the main beneficiary of the Australian law. It's literally taking money from the less problematic spreader of disinfo and giving it to the more problematic one. But Smith/Microsoft act as if this is all for the good of society:

The ideas are straightforward. Dominant tech properties like Facebook and Google will need to invest in transparency, including by explaining how they display news content.

Even more important, the legislation will redress the economic imbalance between technology and journalism by mandating negotiations between these tech gatekeepers and independent news organizations. The goal is to provide the news organizations with compensation for the benefit derived by tech gatekeepers from the inclusion of news content on their platforms.

This has been Murdoch's framing all along and it's total bullshit. There is no "imbalance" here because there's nothing to negotiate over. You don't need to negotiate to link. It's a free thing, and as we saw when Facebook pulled its links, and all these news organizations started whining, it showed that those news organizations actually recognize they derive value from the free links. The whole thing is ridiculous.

And Smith tries to frame it as if it's protecting democracy and the American way. That's garbage.

These are now pressing questions for the Biden administration. Facebook and Google persuaded the Trump administration to object to Australia’s proposal. However, as the United States takes stock of the events on January 6, it’s time to widen the aperture.

The ultimate question is what values we want the tech sector and independent journalism to serve. Yes, Australia’s proposal will reduce the bargaining imbalance that currently favors tech gatekeepers and will help increase opportunities for independent journalism. But this a defining issue of our time that goes to the heart of our democratic freedoms. As we wrote in 2019, “The tech sector was born and has grown because it has benefited from these freedoms. We owe it to the future to help ensure that these values survive and even flourish long after we and our products have passed from the scene.”

The United States should not object to a creative Australian proposal that strengthens democracy by requiring tech companies to support a free press. It should copy it instead.

I'm an independent journalist. This isn't going to help me. There's no way in hell any of these solutions will ever involve us getting any money out of this, and if it did, then suddenly there would be all sorts of questions about whether or not we could even cover those companies fairly, since they'd be a key source of revenue. How the hell does this help democracy?

And, then it gets even worse. Soon after, Microsoft announced that it was teaming up with EU publishers to seek a similar link tax in the EU.

Microsoft is teaming up with European publishers to push for a system to make big tech platforms pay for news, raising the stakes in the brewing battle led by Australia to get Google and Facebook to pay for journalism.

The Seattle tech giant and four big European Union news industry groups unveiled their plan Monday to work together on a solution to “mandate payments” for use of news content from online “gatekeepers with dominant market power.”

They said they will “take inspiration” from proposed legislation in Australia to force tech platforms to share revenue with news companies and which includes an arbitration system to resolve disputes over a fair price for news.

Some people are seeing through all of this -- and even Inc. Magazine called out Microsoft as "the ultimate troll" for its stance here. But this isn't a game. This isn't just politics. This is about the nature of the open web.

And Microsoft is singing happily along as it helps regulators and old, failed publishers around the globe break the open web. All because they're jealous of Google.

It's not difficult to see the path this is likely to head down, and it's bad. A few countries force Google/Facebook to pay these old school publishers. Then, basically everyone else on the web notices this and says "hey, how come they get to link to me for free? Shouldn't they be paying me too?!?" And then, one by one, we'll just hear of every failed and flopped industry demanding free money from the companies that actually innovated. The music industry must be so excited. Book publishing? Absolutely. What about boxed software providers (hi, Microsoft!).

Basically, every industry that failed to adapt and innovate online is likely to go running to government demanding payment. And the very nature of the open internet ceases to exist the way it has for the past three decades. It's a terrible, terrible idea, and it was ridiculous that it went ahead in Australia. But Microsoft is an actual tech company, which should know better, but it's trollish obsession with Google beating Microsoft in the market means it's willing to toss out the open internet if it thinks it will harm Google.

It's shameful and disgusting.

Filed Under: antitrust, australia, brad smith, competition, links, negotiations, news tax, paying for links
Companies: facebook, google, microsoft

The Best Summary Of Australia's News Link Tax / 'Bargaining Code'

from the the-loser,-as-always,-is-you dept

I've been somewhat amazed at the response to Facebook's decision in Australia to first block news links, in response to a dangerous new law, and then to cave in and cut deals with news organizations to pay for links. Most amazing to me is that otherwise reasonable people in Australia got very angry at me, insisting that I was misrepresenting the tax. They keep insisting it's not a tax, and that it's a "competition" response to "unfair bargaining power." Except, as I've discussed previously, there's nothing to bargain over when you should never have to pay for links. The links are free. There's no bargaining imbalance, because there's nothing to bargain over. And, it's clearly a tax if the only end result is that Google and Facebook have to fork over money because the government tells them to. That's... a tax.

Anyway, that's why I'm happy to see The Juice Media, an Australian outfit that is famous for making hilarious "Honest Government Ads", usually for the Australian government (but sometimes for elsewhere) has put out a new "ad" about the link tax in which they explain how it was a fight to take money from one set of giant rich companies, and give it to another set of giant rich companies, and not to do anything useful in between:

It's worth watching. It also highlights some of the other awful aspects of the "code" which will give news organizations more access to data, as well as advance notice of algorithmic changes that no one else gets -- allowing them to better hijack attention away from anyone else. The whole deal is dangerous and corrupt, and no one should be supporting it.

Filed Under: australia, bargaining code, honest government ads, link tax, rupert murdoch
Companies: facebook, google