Remembering Sherwin Siy

from the wishing-this-were-fake-news dept

My friend and colleague Sherwin Siy died suddenly last week, way before his time, way before any of us were ready to lose his friendship, and way before the Internet and the principles he defended could afford to be without his help defending them.

There are some people out there with the very silly idea that the only reason people advocate for the sorts of issues like we do here at Techdirt is because someone is paying us to. The thinking seems to go that "but for" this monetary carrot none of us would bother.

Nothing could be further from the truth. Those of us who fight for these issues do so because we fervently believe they are the right positions to serve the public interest, the Internet, and ultimately the world. Taking on these battles is in many ways a calling, something we feel personally compelled to do.

In the case of both Sherwin and myself (and many others, I'm sure), it is also what drove us to go to law school. As he explained in this interview about his most recent work at Wikimedia, as Lead Public Policy Manager:

"The reason I went to law school in 2002 was because I was inspired by the ability for the internet to be this collaborative, weird place, built out of collections of individuals."[…]

Deeply inspired by the weirdness of the internet and seeking to protect it, Sherwin made it his mission to support "the unanticipated things that are made by people who aren’t multibillion dollar corporations."

Sherwin was just slightly ahead of me in getting his legal career going but had so quickly established himself that as I started mine I reached out to him. "Dear Mr. Siy..." I apparently wrote in my first email to him. By that point he was working for Public Knowledge, eventually becoming Vice-President of Legal Affairs. To me (as I embarrassed him years later when I told him this) he was practically a celebrity. He was a key player at a key organization actually making a difference on these important issues, and I was in awe.

But over the years, as I worked to establish myself as someone who could make a difference too, he helped. One of my first amicus briefs was for the Ninth Circuit in the Lenz v. Universal (aka the "Dancing Baby") case. Public Knowledge was one of my clients for that brief, and that was thanks to him.

Of course, one of the things that has become apparent in the wake of his death is just how many of us he helped, how generous he was with his mentoring, and how unselfish he was with his own power and influence. Naturally he was embarrassed when I told him I'd regarded him as an Internet hero, because of course he was far too humble a person to see himself that way, regardless of how much he deserved such respect for all the work he was doing.

But his loss isn't just being felt by so many because he was a respected colleague we'd come to depend on as an invaluable ally in our advocacy. For many of us we are equally proud to have called him a friend. He was someone I reached out to every time I was in town, and he almost always had time for a good catch-up. Sure, sometimes our conversations might include deep dives into the latest copyright policy, and I remember another occasion when he regaled me of a deep understanding of the historical regulatory underpinnings of modern privacy law—expertise I was fully planning to tap into down the road at some point but now can't.

After all, we were both geeks, and that was our idea of a good time. Of course, our friendship wasn't all work and no play: as I think about my personal memories of Sherwin I remember the time when I was out in his area and suffering from some serious FOMO from seeing all the fun everyone else I knew seemed to be having, per all their pictures that kept showing up on my Facebook feed. So I called up another law geek friend and we planned an outing to go exploring in parkland along a river. And then we called up Sherwin, who hadn't before met my other friend, and we all had a great day hanging out together just like we'd all known each other forever.

I was fully expecting to know Sherwin forever. It was only just a month or so ago that he'd pinged me for advice. He was thinking about the future, as was I. So we talked about what we wanted from it and promised to help each other go get it. Never could I have ever imagined at that moment that when it came to the future my seemingly so vital friend wouldn't have one.

It's impossible to reconcile. In some ways my brain forgets that he's gone; since we didn't live in the same place, he wasn't someone I saw all the time, so to not see him now does not seem that unusual. The kick in the stomach comes from when he pops to mind because it suddenly occurs that I want to hear what he has to say, and then just as suddenly I have to remember that I never can hear it again.

And he's ALWAYS going to pop to mind. There is hardly a policy battle – on copyright, net neutrality, privacy, free speech, and more – where we have not been enormously lucky to have had Sherwin on our team. Sherwin was so smart, so erudite, and so needed in our community of advocates that his loss is incalculable. But it all begs the question: if he could leave this sort of mark in the world, and touch this many people's lives, in his first forty years, imagine what he could have done with 40 more.

Fate has certainly robbed us all.

Filed Under: sherwin siy

It Appears That Jason Miller's GETTR Is Speed Running The Content Moderation Learning Curve Faster Than Parler

from the a-new-record dept

You may recall that last summer, we mocked how Parler was speed running the content moderation learning curve. It seems that every year a new social media service pops up, insisting that it believes in "free speech" and won't "censor" anything. And then... reality hits. And it realizes that if you do no moderation at all, your website is a total and complete garbage dump full of spam, porn, harassment, abuse and trolling. And just as Parler learned it needed to do some moderation (and its then CEO even bragged about kicking off "leftist trolls"), every new platform learns the same damn thing eventually. Though, amusingly, it seems to happen faster and faster each time.

We already wrote about GETTR, the "new Parler" for Trump fans, which also claims to be "free speech" supporting, even as it's funded by a "mysterious Chinese billionaire" who is known for suing news organizations for reporting he disagrees with (which doesn't seem very free speechy). Indeed, his lawsuits were so clearly SLAPP suits that in the dismissal of the case against CNN (one of many of the lawsuits), the judge noted:

Here, plaintiff fails to even allege that the defendants' statements... are an inaccurate depiction of the counterclaim...

Again, not exactly the kind of "1st Amendment" supporting person I'd put behind my free speech site, but what do I know?

In the meantime, GETTR has been doing the whole speed run thing at a faster pace than Parler before it. There were reports that the site was quickly filling up with "Sonic the Hedgehog furry porn" and My Little Pony porn alongside... um... "pictures of old men in their underpants."

And thus, Jason Miller discovered that it's all nice and good to say anything goes on your "free speech" supporting website, until reality shows up. Reality has a nice way of destroying the myth that no moderation is a reasonable stance.

Even more fun, Tim Miller (I am pretty sure no relation to Jason) from The Bulwark, stepped in to explore the world that is GETTR and it's an amazing read. It kicks off with a clear explanation of why every site needs to do some level of housecleaning, lest it end up being filled with junk (including pictures of men's junk). Miller set up an account named @PayChildSupport. And he discovered that GETTR has a content moderation problem.

For starters, Gettr’s verification system is a mess because the platform hasn’t figured out how to resolve the tension between freedom of speech and the freedom to spoof. Which is to say, if you’re a Newsmax anchor, you can get a special red Verrit V, meaning that you are who you say you are. Other accounts are stuck with a black V that I could not determine the significance of. Still other accounts display a homemade checkmark.

And the pranksters got me! My very first brand follow—@SonicFastFood—was not a representative of America’s heritage of innovative and tasty drive-in cuisine, but rather a digital gathering space for furry porn. Of which there is a lot on Gettr.

Look, that’s not my bag of beans but no judgment. If MAGAs are into that sort of thing, that’s cool. But let me just say that during my first day on Gettr I didn’t come across a single substantive exchange of ideas—but I was exposed to a very great deal of Sonic the Hedgehog erotica. What a world.

He goes into a lot more detail (perhaps more than you might reasonably need), but on the whole, about what you'd expect:

Taken as a whole, my Gettr newsfeed was a mash-up of catfishes and spoofs, conspiratorial craziness from real-life right-wingers, racial slurs from anonymous Nazi accounts, and pornographic trolling from (I assume) bored libs. The Algonquin Round Table this is not. The marketplace of ideas was barren.

But hey, it’s the internet, new sites with dumbass trolls and nutty power users are a dime a dozen. The most revealing part of the Gettr experience wasn’t what was on the platform—but what wasn’t.

Because it turns out that this cesspool would have been even worse if not for the fact that Jason Miller was doing exactly the same thing that Facebook and Twitter and all the other Big Bad Tech Oligarchs do: moderating his site’s content in order to provide a more usable product for his audience.

Yes, as expected, Miller and GETTR very quickly started banning accounts, rather than living up to what they claimed were their ideals of a moderation free website. Apparently, it's "okay" to moderate when its content you don't like. And it's not okay to moderate when it's content you like. The fact that "you" is a very subjective "you" seems to be lost on the supporters of GETTR and others who believe that no moderation is some sort of even remotely possible ideal.

As (Tim) Miller notes:

Funny how the entire premise behind these “free speech” platforms—and the GOP policies targeting tech censorship and the endless faux outrage on cable news—is negated the minute the complainers are put in charge.

Because what these people inevitably find is that there’s no lib cabal targeting them. No grand conspiracy of Silicon Valley billionaire bros.

Instead the founders of Gettr have been crushed by the same banal challenge that every neckbeard site admin and anxiety-riddled Zoomer slaving away at the dystopian Facebook content-moderation farm has confronted from the moment the internet birthed this vast catch basin of human knowledge and obscenity and allowed people to post on it anonymously. The problem is the users. You can’t live with ’em. But you can’t live without ’em.

There's a lot more in Miller's piece, which should be required reading for anyone who insists it makes sense (or is even possible) to run any internet forum online without some level of moderation.

Oh, and of course, you know how all this ends? With GETTR banning Tim Miller:

I'm having trouble seeing how anything Tim wrote violated any of GETTR's policies -- and it sure as hell looks like Jason Miller kicked Tim Miller off GETTR because he just didn't like what he had to say. This is something that Twitter and other social media companies don't actually do. They actually do have policies in place, and don't remove people unless they can show a policy that was violated. In other words, GETTR didn't just speed run the content moderation learning curve (while claiming otherwise), it appears to be more aggressive and more willing to ban people for simply stating things that GETTR management doesn't like.

Filed Under: content moderation, jason miller, pay child support, tim miller, trolls
Companies: gettr

Daily Deal: Refurbished 16GB Apple iPad Air 2

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

Experience next-level browsing convenience even when you're on the move with this refurbished Apple iPad Air 2. This supremely thin tablet sports a 16GB capacity, letting you download your favorite apps, browse and stream the web, and securely save pictures and files. It comes with a built-in fingerprint scanner to guard against unauthorized access. It features a fast A8X 1.5GHz processor to open applications quickly, so you can stay productive wherever your day takes you. It's on sale for $320.

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.

Filed Under: daily deal

Maine Legislature Enacts Strictest Facial Recognition Limitations In The Country

from the hopefully-there-are-49-competitors-seeking-to-top-this dept

From out of nowhere, the state of Maine has taken the lead in protecting its residents from the steady encroachment of facial recognition technology. A bill [PDF] recently passed by both sides of the state legislature has become law and makes Maine the standard bearer for future facial recognition tech bans.

Maine has enacted the country’s strongest statewide facial recognition law. Maine’s law prohibits the use of facial recognition technology in most areas of government, including in public schools, and for surveillance purposes. It strictly regulates how law enforcement officials may use facial recognition technology.

This law is more restrictive than anything else passed by a state legislature to date. California's ban on facial recognition tech only prevents law enforcement from utilizing the tech in their body cameras, ensuring these tools remain more focused on police accountability, rather than just an extension of existing surveillance programs.

The state of Washington also passed its own ban recently. But that bill -- which was supported by law enforcement agencies -- isn't really a ban or a moratorium. The tech is still permitted to be used. There are new restrictions in place, though. Using it to engage in real-time surveillance now requires a warrant. And if any state agency wants to start using the tech, it needs to provide public notice, hold at least three community meetings to hear objections, and perform a privacy impact assessment before deploying it.

Maine's new regulations have none of those drawbacks or concessions. No government agency at any level is permitted to use or acquire this tech. And use of the tech is limited to a small list of exceptions, which should prevent state and local agencies from asking federal agencies or those in nearby states to launder their facial recognition searches for them.

Here is the single exception to the ban and the stipulations that accompany it.

Under Maine’s rules, law enforcement may request a facial recognition search from the FBI and the state’s Bureau of Motor Vehicles (BMV) if they have probable cause to believe an unidentified person in an image has committed a serious crime. The BMV and the Maine State Police are required to collect data on search requests from law enforcement. The law stipulates that the results of a facial recognition search do not alone constitute probable cause for law enforcement officers to arrest or search a person. Individuals may bring a lawsuit if they believe a government agency or official has violated the law.

And this exception for serious crimes actually means serious crimes, rather than whatever cops want to declare "serious" to access the tech.

I. "Serious crime" means:

(1) A crime under the laws of this State that:

(a) Is punishable by a term of imprisonment of one year or more; or

(b) Is a Class D or Class E crime under the laws of this State that is a violation 18 of Title 17-A, chapter 9, 11, 12, 13 or 35; Title 15, section 1092, if the violation is based on a condition under Title 15, section 1026, subsection 3, paragraph A, subparagraph (5) or (8); or Title 19-A, section 4011…

That list of crimes includes murder, assault, kidnapping, sexual assault, sexual assault of minors, and sex trafficking. Also included: violating protective orders or bail conditions. This should keep cops from pestering the FBI to find who's been shoplifting or whatever. Anything that doesn't comply with this law is de facto unlawful and cannot be used as evidence in prosecutions.

The law also gives residents the right to sue if they feel they've been illegally subjected to this tech.

It's the strongest facial recognition ban in the nation. And it still allows law enforcement to make use of it through a couple of conduits if they're willing to jump through the very reasonable hoops the law has erected.

Filed Under: facial recognition, government, maine, police, privacy, schools

House Republican's Entire 'Big Tech' Platform Is 'We Must Force Big Tech To Display Our Conspiracy Theories And Lies'

from the sad-state-of-affairs dept

The Republican Party that once claimed to be the party of keeping government out of business and that actions have consequences has moved far, far beyond that. These days, it's a parody of everything it once derided. Take a look at House Speaker Kevin McCarthy's newly announced Framework to Stop the Bias and Check Big Tech. Even from the naming you can see quite clearly ridiculous victim-playing. There remains no evidence of any "anti-conservative bias" in social media content moderation. It is true that some Republican supporters have faced moderation... for breaking the rules. Just as some non-Republicans have faced moderation for those same reasons. It's just that these Republicans -- with no other fundamental principles to go on -- have tried to turn basic content moderation for policy breaking into a whiny victimhood.

Remember when Republicans used to mock Democrats for always playing the victim and being "whiny snowflakes"? Apparently it was all projection.

Just days before the 2018 primary election, Google search results for “California Republicans” identified our ideology as “Nazism.” At the same time, conservatives like Devin Nunes and Donald Trump Jr. were shadow banned on Twitter. For pro-life groups like Live Action and others, the discrimination wasn’t subtle at all. Since then, the examples of conservative censorship and bias across internet platforms has proliferated. Each one of you are all too familiar with how Big Tech and its overwhelmingly liberal executives want to set the agenda and silence conservatives.

Of course, each of those has a story behind them and none of them are presented accurately. Note that McCarthy doesn't bother to explore why any of the above happened (if they happened -- Twitter doesn't engage in "shadow banning" so that's just misleading claptrap). No one at social media companies wants to "silence conservatives." Again, most of the evidence suggests the exact opposite. But the fact is that if you violate policies -- including by spreading dangerous disinformation about, say, health or elections -- you might get kicked off.

That should be a policy that actual "conservatives" support. It's about the rights of private property owners to choose not to do business with those who are disruptive -- and for those being disruptive to face the consequences of their own actions. That seems like the kinds of things that conservatives used to insist they support.

Over 90 percent of search happens on Google and 90 percent of users drop off after first-page results. The ability to stack the deck protects the willing participants of the scheme and punishes the non-compliant. The same gatekeeper effect lies with Amazon and Apple. If your company or product doesn’t meet the criteria of corporate wokeism, it’s increasingly likely Americans won’t find it on these platforms.

What are you even talking about? It's got nothing to do with "corporate wokeism" -- a hilariously stupid term in its own right. And we've seen over and over again that the platforms have actually bent over backwards to have a light touch on conservatives to avoid being accused of bias. The reality is that there is unequal treatment: the sites have given conservatives a lot more leeway, and only proceeded to moderate in the most extreme cases.

Just to make this clear, looking at the accounts that get the most link clicking on Facebook, they are almost always dominated by famous "conservative" individuals and organizations.

Again, the evidence does not suggest "anti-conservative bias." If it's true (and even this could be disputed) that conservatives violate the policies of social media services more often -- for example, by posting utterly debunked conspiracy theories about elections, healthcare, and more -- well, perhaps that's on them. Not the companies.

Then we get to the actual policy recommendations:

Accountability: Our framework would rein in Big Tech and end their abusive practices, including by changing the law so that Americans can challenge Big Tech directly for their infringement of public speech rights. This effort starts by taking away the liability shield Big Tech has hidden behind for far too long. Section 230 of the Communications Decency Act would be changed to limit liability protections for moderation of speech that is not protected by the First Amendment and would preclude Big Tech from discriminating against Americans based on their political affiliation. We would also require regular reauthorization of Section 230 so Congress may update regulations of the constantly-evolving internet landscape.

Sigh. This is such garbage. Moderation is not an infringement of your right to speech. You can still speak -- you just don't have a guaranteed right to use someone else's property to speak. And if you took away 230, you'd get significantly less speech because you'd massively ramp up the legal liability and frivolous lawsuits against social media websites. Remember when Republicans were against handing plaintiffs' lawyers the easy ability to file vexatious lawsuits? Apparently that's out the window.

Also, what the hell does: "limit liability protections for moderation of speech that is not protected by the First Amendment" mean? That would be a massive 1st Amendment violation in its own right, saying that websites must leave up all protected speech. Lies, porn, hate speech, conspiracy theories, harassment, abuse are all protected speech under the 1st Amendment in most cases (there are a few edge cases that wouldn't count). But under such an approach, these Republicans would be turning the entire internet into a cesspool of garbage.

Similarly: "preclude Big Tech from discriminating against Americans based on their political affiliation." First of all, no one is being banned for being a Republican today. The only cases I've ever seen of someone being banned for political affiliation were Nazis. So the Republican Party is now making it official party platform that websites must protect Nazi speech? Really?

Transparency: Our framework would empower Americans by ending Big Tech’s ability to hide behind vague terms of service that have not constrained their conduct in any meaningful way. We will do so by mandating that any Big Tech content moderation decisions or censorship must be listed, with specificity, on a publicly available website. In addition, by requiring Big Tech to implement and maintain a reasonable user-friendly appeals process, our plan will empower conservatives and others whose speech rights have been infringed to challenge Big Tech’s attacks.

Anyone who knows anything about content moderation knows what this really means: give us the rules so we can figure out how to argue with you that we didn't break them. This is the abusers/harassers free pass to be a total asshole to the staff of social media companies, insisting that when they're harassing someone it wasn't "really" harassment. Or when they post racist garbage "it was just a joke." This is to open the floodgates on being able to continue to annoy and harass social media to try to make sure all garbage content must remain up.

Strengthening Anti-Trust Review: Our framework also recognizes that the status quo and bureaucratic delays are not acceptable when it comes to bringing long-overdue antitrust scrutiny to Big Tech. We will provide an expedited court process with direct appeal to the Supreme Court and empower state attorneys general to help lead the charge against the tech giants to break them up. We will also reform the administrative state and remove impediments that delay taking action on Big Tech power.

I mean, Republicans have spent the past four or five decades redefining anti-trust to make it effectively impossible to win a case on anti-trust grounds, so this is quite a turnaround -- but also one of those situations where you almost want to say "hey, you made this bed, now lay in it."

Anyway, a few days after McCarthy put out this ridiculous "framework," Republicans on the House Judiciary put out their own plan, which they claimed was "consistent" with McCarthy's framework -- and it is. It is consistently disconnected from reality.

It, of course, removes Section 230:

A cause of action to empower Americans. For far too long, Big Tech has been able to censor the views of conservatives with effectively no recourse available to those affected. This proposal would create a statutory basis for Americans to directly challenge Big Tech in court for its censorship and silencing of conservatives.

Overhauling Big Tech’s liability shield. Congress passed Section 230 of the Communications Decency Act to allow internet platforms to moderate unlawful or offensive content on their platforms. Big Tech has exploited this protection to make subjective content moderation decisions, often in a manner harmful to conservative voices. This proposal will ensure that any content moderation decisions are done in good faith, based on objectively reasonable criteria, and in accord with particularized rules.

As has become standard among politicians these days, this completely misstates and misunderstands how Section 230 (and the 1st Amendment) work. Both of the concepts above would be clear violations of the 1st Amendment, as we just saw with the Florida law that Florida Law that tried to create something similar.

The whole thing is one giant performative, grievance, pity party from the party that used to pretend to be against such things. It's just sad, but that is the state of the Republican party these days.

Filed Under: antitrust, bias, big tech, kevin mccarthy, republicans, section 230

Funniest/Most Insightful Comments Of The Week At Techdirt

from the community-convos dept

This week, our first place winner on the insightful side is from an anonymous commenter, responding to someone who described the Capitol Hill insurrection as a "kerfuffle":

You are another one of the fuckers who are trying to minimize what happened on 1/6.

Trumpists violently attacked the capitol, the capitol police, and DC metro police. There are numerous videos and 1st hand accounts of Trumpists beating cops with American / Trump flag poles. There is video of numerous violent attacks against the officers trying to defend the capitol and the congress.

To claim that it was just a "kerfuffle" and "100% based on politics." is to be a fucking asshole that doesn't deserve the freedoms that we have in this country.

If you really think that people yelling "Hang Mike Pense" and having a god damn gallows built outside the capitol is just a "kerfuffle", then you're a fucking asshole.

Sorry, do I sound angry about you calling it a "kerfuffle", You fucking bet your ass I am angry.

It was a violent attack, instigated by Trump and his fucking sycophants, and people fucking died because of it. It wasn't a "kerfuffle" you fucking imbecile!

In second place, it's JMT responding to a complaint about "elements of the executive branch" who "were working against Trump":

Some say "working against Trump, some call it "following the law".

For editor's choice on the insightful side, we start out with a comment from sumgai responding to the perennial description of social media as "the new public space":

No, it's not. It's a shared private space, an entirely different thing altogether. If you insist on mixing up those two concepts, then you have only yourself to blame for all the Toll/Spam/Abuse clicks you keep getting.\

(Actually, social media is made up of many different private spaces, each of which has some degree of sharing. The control of the sharing varies from one private space to the next.)

Next, it's Bloof with a comment about the successes of community broadband:

Blindsided by this triumph of socialist communist Marxist community broadband, the big telcos redoubled their efforts, vowing to crush the red menace by building new infrastructure, cutting prices and upgrading their networks to prove the free market always wins in the end... No wait, they'll just buy enough state senators to ban community broadband state by state.

Over on the funny side, our first place winner is wshuff with a comment about Trump's extremely stupid lawsuit against Facebook, Twitter, and YouTube:

If he opens a theme park at Mar-A-Lago, can he avoid paying attorney fees?

In second place, it's an anonymous comment about cops playing copyrighted music to disrupt citizen recordings:

Where's ASCAP in this?

Cops deliberately playing songs in public for Internet streaming without a performance license? ASCAP should be all over the cops not paying up.

For editor's choice on the funny side, we start with an anonymous response to a list of complaints about Facebook:

"FB will allow convicted felons,"

Yeah, Dinesh D'Souza is still there.

"2020 rioters,"

I think most of the Boogaloo Bois moved to Parler.

"and probably even some pedophiles."

Trump has been banned from Facebook until at least 2023...

And finally, we've got K'Tetch with a comment about Ubisoft's latest DRM disaster:

Ubisoft is registered with the Ferengi Commerce Authority, and all complaints should be sent care of the FCA

... where they'll send it back and charge you for reading it, quoting the following rules of Acquisition

1 - Once you have their Money, you never give it back

17 - A contract is a contract... but only between ferengi

239 - Never be afraid to mislabel a product

299 - After you've exploited someone, it never hurts to thank them. That way, it's easier to exploit them next time

(Personally, I think we could use more Rules of Acquisition jokes in life.)

That's all for this week, folks!

This Week In Techdirt History: July 4th - 10th

from the what-was dept

Five Years Ago

This week in 2016, transparency was under attack on many fronts. A North Carolina legislator who was a former police chief pushed through legislation to keep body camera footage out of the public's hands, while in the course of two days we got two examples of cops making recordings disappear, and the Philadelphia police department responded to an open records request by releasing one document: the journalist's own request email. An Ohio court sanctioned a lawyer for sharing publicly-available court documents with journalists, while another court secured a grand jury indictment against a newspaper publisher for filing open records requests. The details about Hillary Clinton's email server showed several emails withheld from FOIA availability (as an appeals court said email stored on private servers is still subject to FOIA requests). And the FBI was vacuuming up local law enforcement documents about the Orlando shooting to block open records requests. President Obama did sign a FOIA reform bill... just in time for it to have no impact on his administration.

Ten Years Ago

This week in 2011, a group of law professors came out against the PROTECT IP bill, while Hollywood was ramping up a smear campaign against opponents of the bill, and one Senator removed himself as a co-sponsor (though the reasons were unclear). PROTECT IP wasn't the only bad piece of copyright legislation either: an anti-streaming, anti-embedding bill caught the attention of video game streamers who realized how it could impact them, and a bunch of YouTubers started putting up videos to protest it.

But perhaps most memorably, this was the week that the infamous Monkey Selfie fiasco kicked off.

Fifteen Years Ago

This week in 2006, the recording industry was wasting its time suing international sites while the Associated Press was taking a look at piracy around the world and largely missing the point. Attempts to get college students onto special music download platform swere a total flop, record labels were turning to elaborate deluxe CDs to compete with piracy, and Australia was seeking to regulate YouTube.

But, once again most memorably, this was the week that Senator Ted Stevens delivered the infamous "series of tubes" line about the internet.

Filed Under: history, look back

Cord-Cutting Leads To Gaming Studios Exploring In-Game Ads To Unlock Gaming Perks

from the this-is-gonna-suck dept

Advertising in the digital age is always something of a tricky subject. On the one hand, we have made the point for years that advertising is content and content is advertising. The point there is that the more useful and entertaining or engaging advertising tends to be, the more the public looks at it as just more content to consume, while really good content also serves as an advertisement of sorts for the content provider. Many folks simply believe that the public hates advertising full-stop, but that's really not true. Were it true, one of the hallmark experiences of the Super Bowl wouldn't be watching the ads. Instead, ads have to be engaging, fun, or useful. Unfortunately, the vast majority of advertising is otherwise, leading to the public tending to look for ways to not have to experience advertising generally.

The worst solution proposed in all of this is to find new and nefarious ways to force the public to view ads. The second worst solution is to coerce them into doing so. And the worst place to do any of this, it seems to me, is in the video game space, where the public has already often times dropped hundreds of dollars on gaming rigs and the games themselves. But that, it seems, is exactly what company PlayerWON is looking to roll out.

A first-of-its-kind in-game advertising platform called playerWON launches this week, allowing big-name marketers that are used to running splashy TV ads the ability to target younger demographics with similar types of spots that will run in video games.

-The platform, which is owned and operated by Simulmedia, a TV ad tech company, will let users determine whether they want to watch a 15 or 30-second video ad in exchange for being able to unlock exclusive gaming perks.

-Simulmedia has struck deals with some of the world's biggest gaming studios, including Electronic Arts (EA) and Tencent's Hi-Rez Studios, its EVP, Gaming and OTT Dave Madden told Axios.

If you're anything like me, your initial reaction to all of this is likely to result in you having convulsions over just how repulsive this all is. But we should take a step back and acknowledge something: this could be done well. The idea of injecting optional advertising into gaming, especially free-to-play games, isn't an inherently awful idea.

No, the real problem is that virtually nobody in the gaming public has, or should have, any faith that this will be done well. What does doing it well mean? Well, for starters:

• The "perks" involved had damned well better be nice-to-haves and/or cosmetic and not offer some kind of boost to being able to compete in or play the game itself. Otherwise, you've broken the balance and experience of the game.
• The ads had better stay short and not interrupt the gaming experience to the point of television, where gamers just leave the room while it plays.
• The ads, as noted in the opening of this post, must be engaging, useful content of some kind.

Missing on any of those three will cause an even larger revolt among the gaming public than will almost certainly already occur. If you need an example of how to absolutely not attempt any of this, 2K Sports has you covered.

Now, while this is largely being spurred on by younger members of the public also being cord-cutters, making them less likely to be reached by traditional advertising, Morgan Stanley seems to think that in-game ad programs like this could be a $2 billion industry. Though, importantly, that projection is based on nearly half of gamers opting into the ads.

I'm sorry, but there's no fucking way that's going to happen, even if this is done perfectly. Not if it's opt-in. What is more likely is that this will only be opt-in for a while and then someone, or several someones, are going to try to first make it opt-out and eventually non-optional. And then you're going to really see the consequences of advertising programs being done terribly, because nobody will buy those games.

Filed Under: ads, perks, playerwon, video games
Companies: ea, simulmedia, tencent

Biden Executive Order Disrupts Hot DC Trend Of Pretending 'Big Telecom' Doesn't Exist

from the do-not-pass-go,-do-not-collect-$200 dept

We've been submerged in kind of a bizarre asymmetrical tech policy paradigm over the last few years, in which "big tech" is viewed as the absolute root of all evil requiring all manner of hand-wringing and antitrust/regulatory reform. At the same time, policy leaders have simply forgotten that heavily monopolized internet-adjacent sectors like "big telecom" even exist, giving them cover to gut regulatory oversight, consumer protections, and media consolidation rules. Telecom (AT&T) and media (Rupert Murdoch) giants have successfully exploited legitimate public anger at big tech to encourage this kind of lopsided policy thinking.

This week this policy myopia shifted back to baseline a bit with Biden's new executive order focused on shoring up competition issues. According to the EO fact sheet, the order pushes more than 72 different initiatives across a dozen federal agencies, including the FCC and telecom. Mike covered the not telco portions, which will be covered in this post. Most notable (for telecom, anyway) is that the order nudges the FCC to restore net neutrality rules:

We've noted more than a few times how the Trump/Pai net neutrality repeal didn't just kill "net neutrality rules." It gutted much of the FCC's consumer protection authority, limiting its ability to police fairly consistent telecom sector billing fraud and other bad behavior. It also attempted to ban states from filling that consumer protection void. It was effectively a giant wishlist cooked up by telecom monopolies like AT&T, based entirely on bullshit justifications, and propped up by fabricated public support. Despite this, the whole thing was dressed up as "serious policy" by press and policy wonks who should have known better.

In addition to the restoration of net neutrality, the Biden EO also takes several other steps to shore up telecom issues. Among them is urging the FCC to stop telecom giants from creating block-by-block broadband monopolies via exclusive landlord arrangements. The FCC passed rules prohibiting this back in 2007, but they're so filled with loopholes that telecom giants have been allowed to tap dance around them for years now (Susan Crawford wrote an essential primer on this problem for Wired a few years back).

A not insubstantial portion of the EO involves urging government agencies to simply do their jobs. Like the antitrust enforcers at the DOJ and FCC, who under both administrations are often little more than mindless rubber stamps for problematic job- and competition-eroding megadeals (see: the entirety of US telecom history since 1990). Simply leveraging more scrutiny to the often illusory benefits of endless megadeals would go a long way in shoring up both regulation and this whole "antitrust reform" so popular with the kids these days.

Other aspects of the EO related to telecom are more specific, like requiring that the FCC restore plans (also scuttled during the Ajit Pai era) requiring a sort of nutrition label for broadband, making ISPs disclose hidden fees, throttling, caps, or other restrictions on your broadband line (aka transparency). The order also urges the FCC to collect more data on broadband pricing, something it historically (at telecom lobbyist behest) hasn't been keen on doing for what should be obvious reasons.

Most of these proposals are common sense, while others restore a lot of the FCC consumer protection authority and policies telecom giants stripped away in a parade of fraud and dodgy bullshit during the Ajit Pai era. But many of them require a fully staffed FCC and permanent agency boss to actually implement, something the Biden administration has been in no rush to provide, much to the annoyance of consumer groups. There's a lot of ground to cover between what's in the executive order and actual implementation, and it's going to require an FCC with some real backbone to accomplish most of it.

Still, much to AT&T and Comcast's chagrin, the Biden EO makes it clear that the problems created by big telecom haven't been entirely forgotten, however much these regional monopolies would prefer policy conversations to remain myopically fixated on big tech and big tech alone.

Filed Under: antitrust, broadband, competition, doj, executive order, fcc, joe biden, net neutrality, telco

Biden's Executive Order On Competition Has... Lots Of Really Good Ideas? Though, Potential Overreaches On Executive Power

from the nice-to-see dept

Given how many discussions on antitrust these days are mind bogglingly bad, I was nervous when it was announced that the Biden Administration would be releasing an executive order on competition. Now that it's out however, I have to admit that I'm very surprised. The executive order is actually full of mostly good ideas. I was... not expecting that. I do think, however, that in some areas it probably (unfortunately) over-stretches executive authority, which should be concerning. But on the whole, there are a bunch of ideas in here to actually deal with anti-competitive problems.

On labor markets, the executive order encourages the FTC to take some positive steps:

Encourages the FTC to ban or limit non-compete agreements.

Encourages the FTC to ban unnecessary occupational licensing restrictions that impede economic mobility.

Encourages the FTC and DOJ to strengthen antitrust guidance to prevent employers from collaborating to suppress wages or reduce benefits by sharing wage and benefit information with one another.

We've talked about all three of these issues extensively in the past, and just how damaging they are. Occupational licensing is massively damaging, in that it's used to exclude people from jobs, limit competition, and drive up costs to consumers, all based on often completely bogus claims about "safety and security." I've talked in great detail about how noncompete agreements suppress innovation, and that there is extremely compelling evidence that a key reason why Silicon Valley became Silicon Valley is because noncompetes are not enforceable in California (and, relatedly, that the downfall of Detroit was in Michigan making noncompetes enforceable in the early 1980s). Indeed, I've long advocated that every state should follow California's lead and ban noncompetes. And, for all the talk about how "evil" big tech companies are, one area where I have strong agreement is how they colluded to keep wages down a decade ago.

So these three things all sound... really great? However, I'm not entirely sure that the President can actually do things this way. Yes, the executive order just says that he's "encouraging" the FTC to take these steps, but the FTC is supposed to be an independent agency, and we should all be at least somewhat hesitant to embrace the President pushing independent agencies. Also, it's not entirely clear to me that the FTC has the authority to follow these suggestions. They are all good suggestions and ideas, and I support the goals. I just worry that taking a shortcut by executive order via the FTC (under potentially dubious authority) could undermine the value of these moves.

The moves regarding healthcare are also interesting and mostly good ideas:

Directs the Food and Drug Administration to work with states and tribes to safely import prescription drugs from Canada, pursuant to the Medicare Modernization Act of 2003.

Directs the Health and Human Services Administration (HHS) to increase support for generic and biosimilar drugs, which provide low-cost options for patients.

Directs HHS to issue a comprehensive plan within 45 days to combat high prescription drug prices and price gouging. 

Encourages the FTC to ban “pay for delay” and similar agreements by rule.

We've talked about much of this before as well, especially the ability to import drugs from Canada and the pure, unadulterated evil of the pay for delay scam. What's missing, though, is a recognition that the problem with every single one of the items listed above is really in the patent system beneath it. Every one of these issues wouldn't be an issue at all if we fixed our broken patent system and how it handled pharmaceutical patents. But, because doing that requires (1) Congress, and (2) an impossible fight that the Pharma lobbyists would kill immediately... we instead have to dance around the real problem with again, executive order-driven nudging.

That's not to say patents are ignored in the executive order. There's a really nice bit in which it asks the DOJ and Commerce Department to "re-evaluate" its stance on allowing patents in standards:

To avoid the potential for anticompetitive extension of market power beyond the scope of granted patents, and to protect standard-setting processes from abuse, the Attorney General and the Secretary of Commerce are encouraged to consider whether to revise their position on the intersection of the intellectual property and antitrust laws, including by considering whether to revise the Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments issued jointly by the Department of Justice, the United States Patent and Trademark Office, and the National Institute of Standards and Technology on December 19, 2019.

There are some other items in the healthcare proposal that are beyond typical Techdirt scope, but certainly sound reasonable: such as more hospital transparency and limiting hospital mergers. Back in 2013, we wrote about how healthcare is a giant economic scam, mostly driven by the hospitals (everyone blames the insurance companies, who are complicit, but if you look at the details, it's often the hospitals themselves that are the real scams).

More specific to tech, there are some new items regarding the FCC and the telco broadband space, which Karl will cover in a separate post. I will note that many of the ideas do seem reasonable -- but again, I worry about executive overreach regarding an independent agency, and a failure to address the actual issues.

Regarding "big tech" the executive order pushes for greater scrutiny of mergers -- and, especially, acquisitions by the "big" companies. While many people in tech policy I know disagree with this take, I actually don't have a problem with it in concept. We should scrutinize carefully when very large companies buy smaller companies to see what the impact on competition and consumer welfare should be. What we should not do is automatically rule out all such mergers and acquisitions, because that would create a bunch of consequences that would actually be bad for innovation -- such as discouraging investment in startups or limiting acquisitions that actually are additive. But, conceptually, yes, we should scrutinize such mergers carefully. As expected, it also encourages the FTC to make rules barring restrictions on independent repair and DIY repair. Again, the FTC may be somewhat limited in what it can do, but this is a huge step forward for the important right to repair movement.

There is also a part about rules on the collection of user data and how it's used. That's... potentially good and potentially bad depending on how it plays out. It asks the FTC to explore:

unfair data collection and surveillance practices that may damage competition, consumer autonomy, and consumer privacy;

In theory that's good. And there are many companies engaged in sketchy practices with data. But there are also lots of important, and useful uses of data. And I worry that an overly aggressive FTC could conflate the two. I'd much prefer working on proposals to unlock our data by providing more transparency and control to end users, so we don't have to trust companies that don't have our best interests in mind.

There's also a bit about "unfair competition in major Internet marketplaces," which seems to be aimed specifically at Amazon selling its own branded products. To be honest, I've never really understood why this is a problem. A ton of retailers have done this going back basically forever. And, it's not clear that the supposed "data advantage" that Amazon has really exists or is meaningful.

Overall, there really are a lot of good ideas in here. I just wish most of them were taken up by Congress, rather than being nudged through executive order.

Filed Under: antitrust, competition, doj, executive order, fcc, ftc, non-compete agreements, occupational licensing, patents