FCC's Carr Thinks 'Big Tech' Should Subsidize His Pals In 'Big Telecom'

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

Way back in 2005, former AT&T CEO Ed Whitacre whined incessantly about how Google was getting a "free ride" on his company's "pipes," and that they should be charged an additional toll (you know, just because). As we've discussed countless times in the years since, Whitacre's argument made absolutely no sense, given that Google not only pays plenty for bandwidth, but the company owns billions in international and oceanic fiber runs, data centers, and network infrastructure. Despite making no sense, this idea that Google was some kind of free ride parasite and should be throwing millions in additional money at telecom giants has been a talking point for global telecoms for years.

While the feeble argument had taken a vacation for a while after the net neutrality debate, it popped up again this week in a clumsy, logic-optional op-ed over at Newsweek by FCC Commissioner Brendan Carr. In it, he argues that we should do away with existing flawed but important low-income and school broadband subsidy programs like E-Rate, and instead have "big tech" pay for everything:

"It is time to fundamentally rethink how we fund our high-speed networks. That is why I am proposing a third way. We should start requiring Big Tech to pay its fair share. Big Tech has been enjoying a free ride on our internet infrastructure while skipping out on the billions of dollars in costs needed to maintain and build that network. Indeed, one study shows that the online streaming services provided by just five companies—Netflix, YouTube, Amazon Prime, Disney+ and Microsoft—account for a whopping 75 percent of all traffic on rural broadband networks.

So, as we've noted the last fifty times this flimsy argument has been trotted out, streaming video giants like Google, Amazon, and Netflix pay millions of dollars for connectivity. Not only that, they run vast fiber routes that stretch around the planet and operate their own massive content delivery network hubs to ensure it's all delivered as efficiently as possible. For Christ's sake, Google is an ISP. The fact their popular video products make up the majority of overall internet traffic is an utterly meaningless stat in this context, thrown in there by Carr (or more likely his intern) to make his argument sound semi-coherent and scientific.

But the reality is these companies aren't getting anything even vaguely resembling a "free ride." When it comes to the heavily regionally monopolized US telecom market, nobody gets a free ride. Consumers, schools, and enterprise customers alike often pay some of the highest prices in the developed world for bandwidth thanks to limited competition and regulatory capture. But for literally 20 years the telecom industry has employed a rotating crop of sock-puppets and dollar-per-holler experts who employ the "free ride" argument for one reason: big telecom wants an even bigger handout.

It looks like the GOP tried to make this lame argument go viral yesterday, but be well aware, this is an AT&T message being parroted through the mouth of their most trusted, captured regulators:

That's not to say we shouldn't be reforming our existing and often quite broken subsidy programs. But something Carr (coincidentally, for sure!) forgets to mention is that if anybody is getting a free ride in this equation, it's regional telecom giants. They've received countless billions from taxpayers over the years for networks that always mysteriously wind up half deployed. Time after time after time after time, "big telecom" nabs billions in subsidies, regulatory favors, tax breaks, and other perks in exchange for half ass, half completed fiber networks.

Not only does Carr intentionally avoid mentioning the telecom industry's long and obvious history of taxpayer fraud, waste, and abuse, he attempts to flip everything on its head and suggest only large tech companies are the beneficiaries of "corporate welfare":

"Ending this corporate welfare is more than fair. It is consistent with the network compact that has prevailed since the earliest days of the Ma Bell telephone network. Historically, the businesses that derived the greatest benefit from a communications network paid the lion's share of the costs. For instance, the fees that businesses paid for local and long-distance calls provided the key funding stream to build the traditional telephone network."

Big tech has ample issues that need addressing, but that's not really what's happening here. What's happening here is the telecom lobby is trying to piggyback on valid complaints about Silicon Valley giants just so they can grab a chunk of their ad revenues. Revenues AT&T, Comcast, Verizon had friend have coveted for years. The problem is we're talking about broadband, and when it comes to broadband as it pertains to "free rides," the problem is these telecom giants themselves.

Carr must have forgotten about how AT&T got a $42 billion Trump tax cut in exchange for big promises of boosted network investment and jobs that never happened. Not only did they not happen, AT&T has laid off an estimated 54,000 employees since 2017. I think folks are smart enough to see through Carr's arguments here. After all, this is a guy that has never seen a giant telecom merger, handout, regulatory favor, or subsidy he didn't like. He's about as clear of a captured regulator as you're likely to see in the wild, and the idea he's interested in genuine reform given his track record should be laughed at.

Telecom giants like AT&T have always lusted after the immense advertising revenues Silicon Valley has enjoyed, and have always somehow believed they're owed a slice of those revenues just because much of this traffic touches their own networks. But "big technology companies should pay us billions in additional dollars for no reason" has never been a real argument. It's just a flimsy telecom monopolist pipe dream repeatedly propped up by captured regulators and corrupt politicians who lost the plot years ago.

So why is it popping up suddenly now? My wager is telecom lobbyists want to provide their trusted DC allies with talking points to help them justify their opposition to Biden's $100 billion $65 billion broadband plan. Messaging along the lines of: "spending money to expand broadband competition isn't really necessary! Wouldn't it just make more sense to have Google, Netflix and Amazon throw billions of dollars at AT&T for no reason?" But Google, Netflix, and Amazon are already paying for it. We're all paying for it. Over, and over, and over again. And the reason we're still paying for it in 2021 is because too few DC officials have the courage to stand up to regional telecom monopolists in the first place.

Filed Under: brendand carr, corporate welfare, digital divide, e-rate, fcc, free ride, subsidies
Companies: at&t, facebook, google, netflix, verizon

Former Trump Spokesman Ordered To Pay $42,000 To Gizmodo After Losing His Bogus Defamation Lawsuit

from the windmill-jousting-a-surprisingly-expensive-sport dept

A former Trump spokesman has reached the end of his always-doomed attempt to sue an online publication for reporting on the content of court documents. And it's going to cost him about $42,000 in legal fees.

Jason Miller was understandably disturbed when the now-defunct Splinter (owned by Gizmodo) wrote about allegations made by another Trump campaign staffer, A.J. Delgado. These allegations were made public during unrelated court proceedings. And they're pretty disturbing.

On Friday, September 14, 2018, Ms. Delgado filed a supplement to an earlier motion for the court to consider a psychological evaluation of Mr. Miller. Essentially, the supplement stated that Ms. Delgado was informed in the summer of 2018 that Mr. Miller (while married) had an affair in 2012 with a stripper in Florida referred to as Jane Doe; that Mr. Miller had sexual intercourse with Ms. Doe; that Ms. Doe became pregnant; that Mr. Miller visited Ms. Doe and gave her a beverage which, unbeknownst to her, contained an abortion pill; that Ms. Doe wound up in a hospital emergency room, bleeding heavily, and almost went into a coma; that the pill induced an abortion; and that Ms. Doe’s unborn child died. The supplement identified Ms. Delgado’s initial source for this information and stated that Ms. Doe had later confirmed the story to a journalist.

Splinter reported on these allegations, linking to the filed document. The supplement was later sealed, but that move couldn't undo the reporting. Neither could Miller's litigation.

He was first rejected at the district level. The court cited New York state law (where Splinter was located) as protecting journalists from being sued for reporting on allegations made in court filings. Furthermore, it pointed to Splinter's posting of the filing itself as being instrumental to its fair reporting defense. ALWAYS POST DOCUMENTS, folks.

Miller's appeal went no better. The Eleventh Circuit Court of Appeals agreed with the lower court's filings, both in terms of the First Amendment and New York state law. Anyone reading the filing posted by Splinter was free to draw their own conclusions from the sworn statements. A post-publication sealing by the court doesn't suddenly make the contents of the documents privileged or any legitimate basis for a defamation lawsuit.

With the appeal going in favor of Splinter, the case has returned to the Florida court. And the lower court says [PDF] Miller is on the hook for legal fees.

Judgment in the amount of $41,868.23, reflecting costs incurred by Defendants at both the district court and appellate court levels, is entered against Plaintiff in accordance with the terms of the Stipulation.

That expense will be in addition to whatever Miller paid to engage in the fruitless litigation. If it's said in court and made publicly available by the clerk -- even temporarily -- it's fair game for reporting.

Filed Under: anti-slapp, attorneys fees, defamation, fair reporting privilege, jason miller, reporting, slapp
Companies: gizmodo, splinter

Daily Deal: The A To Z Cybersecurity And IT Training Bundle

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

The A To Z Cybersecurity And IT Training Bundle has 12 courses to help you all about cybersecurity. Some courses cover ethical hacking, penetration testing, and SQL injections. Other courses include test prep content for various certification exams like CISSP, GSEC, CompTIA Security+, and others. The bundle is on sale for $39.

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

Biden Cuts $35 Billion From New Broadband Plan To Appease The GOP

from the good-luck-with-all-that dept

As we've been noting, there's a long runway between the Biden Administration's vague but promising broadband plan and actual implementation. And there's millions of dollars and literally thousands of lobbyists hard at work trying to make sure that the plan, whatever it winds up looking like, doesn't disrupt the comfortable, status quo that is the regionally-monopolized and dysfunctional US broadband market.

I've already seen some evidence said lobbyists have had some success weakening plan language that would limit the amount of "overbuilding" (read: competition) to existing monopolized markets. 83 million Americans live under a broadband monopoly, and incumbent giants AT&T, Verizon, and Comcast want any and all spending focused exclusively on giving them subsidies for unserved areas, instead of building out vibrant competition in their existing footprints.

Activists are also growing annoyed with the fact that the Biden administration still hasn't fully staffed the FCC and appointed a new permanent boss, without which the agency can't reverse the net neutrality repeal, or most of the Trump FCC's butchering of the agency's consumer protection authority. Giving the Canadian Ambassadorship to a a top Comcast lobbyist appears to be happening at a quicker cadence.

Meanwhile, the Biden plan overall is already starting to shrink as his administration tries to get the 10 GOP voted needed to nab a 60 vote majority. As a result, the $100 billion plan is officially now a $65 billion plan, and shrinking:

"The White House informed Republicans of Biden's willingness to cut $35 billion from his broadband proposal in a memo on Friday. "We believe we can still achieve universal access to affordable high-speed Internet at your lower funding level, though it will take longer," the White House told Republicans, according to NPR. "Any funding agreement would need to be paired with reforms to ensure these investments create good jobs, promote greater competition, and close the digital divide."

Even with cuts there's still no evidence that the GOP is going to get on board.

While there are plenty of Democrats in close allegiance to the telecom sector, the modern GOP broadband platform as a whole is utterly indistinguishable from the goals of AT&T, Verizon, and Comcast in every respect. They oppose any meaningful oversight (be it net neutrality or privacy), oppose voter-approved community broadband, support absolutely every merger that comes down the road regardless of harm, and despite talking a lot about their breathless dedication to closing the digital divide, can rarely even admit that a lack of broadband competition and high consumer prices are real problems.

It's very unlikely that a party whose positions are utterly indistinguishable from telecom monopolists are going to bend on any of this, something Senator Ed Markey has been quick to make clear:

"Despite President Biden’s efforts to engage with Republicans, they have shown no willingness whatsoever to negotiate in good faith with Democrats to confront the intersecting crises we face. We need to make the investments now to help our country and communities rebuild and recover, as well to ensure that we never return to the status quo that left too many Americans behind and created the worsening climate crisis. Now is the time to go big, to go bold, and to go fast. This is not the time for half-measures, half-spending or foot-dragging."

Despite having broad public support (58% of voters support passing the entire infrastructure bill without GOP support), it seems extremely unlikely a broadband bill gets the necessary 60 votes unless it's butchered to the point of uselessness, which under-delivers and undermines the Democrat chances of re-election in 2022 and 2024 (another major reason for GOP opposition). That leaves killing the filibuster, or shoveling an infrastructure bill through via reconciliation rules, the former of which seems unlikely, and the latter of which is far from a given.

Filed Under: appeasement, broadband plan, budget, congress, fcc, infrastructure, investment, joe biden

Another Journalist Informed Trump DOJ Otained Their Phone And Email Records

from the you're-looking-that-the-wrong-end-of-the-link,-dumbasses dept

It certainly appears the new Attorney General is doing some house cleaning. A pretty steady drip of disclosures have made their way into the public sphere about the DOJ's activities while headed by Bill Barr and overseen by the Trump White House.

A couple of weeks ago it was disclosed that the DOJ had obtained three Washington Post journalists' phone records while investigating leaks related to Russian interference in the 2016 election. More recently, a case involving a Twitter account targeted by a Devin Nunes defamation lawsuit was unsealed, showing the DOJ attempted to force the social media service to turn over identifying info related to the NunesAlt account.

And now there's this: another journalist targeted by the DOJ -- again supposedly to root out the source of White House leaks.

The Justice Department informed CNN Pentagon correspondent Barbara Starr, in a May 13 letter, that prosecutors had obtained her phone and email records covering two months, between June 1, 2017 to July 31, 2017. The letter listed phone numbers for Starr's Pentagon extension, the CNN Pentagon booth phone number and her home and cell phones, as well as Starr's work and personal email accounts.

The DOJ is well aware this sort of thing looks bad. But that hasn't stopped it from targeting journalists with disturbing frequency. And it's not just a Trump/Barr thing. The Obama Administration did plenty of leak-hunting and it occasionally involved acquiring journalists' communications records. The DOJ slightly dialed back its enthusiasm for targeting journalists briefly after suffering a few PR black eyes, but the election of Trump brought a newfound enthusiasm for viewing journalists as enemies -- something both of Trump's Attorney Generals supported.

The frequency of these disclosures -- three in three weeks -- suggests the DOJ, under AG Merrick Garland, is taking a very close look at the actions of his predecessors and, hopefully, trying to undo some of the damage. At the very least, it looks like the application of some much-needed sunlight -- the sort of thing that's often useful in deterring future abuses.

The DOJ, however, is still using the same excuse for its worrying excursion across First Amendment lines. According to its spokespeople, there's really nothing wrong with using this investigatory tactic.

A Justice Department official confirmed that Starr was never the target of any investigation.

Oh, ok. It's fine that journalists' sources were targeted, not the journalists themselves. As if that doesn't place journalists in difficult positions and the government's apparent willingness to obtain communication records doesn't make it less likely journalists will be handed sensitive documents. I mean, that's obviously the end goal of actions like these, but it doesn't make them any more Constitutionally-sound or any less odious.

Fortunately, it appears the new DOJ boss isn't like the old bosses (Bill Barr, Jeff Sessions). This DOJ appears more willing to steer clear of potential controversy and less likely to view journalists as adversaries.

Anthony Coley, DOJ's director of public affairs and a senior advisor to Attorney General Merrick Garland, said in a statement to CNN that the decision to use the legal process to obtain Starr's communications was approved in 2020, during the Trump administration.

"Department leadership will soon meet with reporters to hear their concerns about recent notices and further convey Attorney General Garland's staunch support of and commitment to a free and independent press," Coley said.

The press hasn't seen much DOJ or Presidential support over the past four years, so this is a welcome improvement. Hopefully, it's sincere and not just a one-time patch job meant to unruffle feathers at major news corporations before proceeding with business as usual.

Filed Under: 1st amendment, 4th amendment, barbara starr, doj, email records, journalism, phone records, surveillance, william barr
Companies: cnn

Milwaukee Sewerage District Threatens Menards Over Fertilizer Sales

from the oh-shit dept

We have certainly seen some shitty trademark disputes in the past, but this one that centers around lawn fertilizer may take the proverbial cake. Apparently, the Milwaukee Metropolitan Sewerage District, supposedly focused on keeping the city's public water clean and local flooding from occurring, has something of a side hustle going where it also sells fertilizer to citizens, marketed as "Milorganite". Menards, the well-known home improvement retailer based in Wisconsin, sells its own fertilizer, marketed as e-Corganite. For this reason, in part due to an advertisement Menards put out (more on that in a moment), the Sewerage District has sent letters to Menards threatening to sue for trademark infringement. Worth noting is that Milorganite is actually sold in Menards stores.

The sewerage district has sent a letter to the company asking it to stop using the name e-Corganite for fertilizer it's been selling in Menards stores. Menard is trying to convince shoppers to purchase e-Corganite instead of the district's Milorganite fertilizer, according to the letter from Joseph Ganzer, a MMSD senior staff attorney.

The letter includes a photo of a Menard store display showing the two products next to each other.

"As you can see, the name, bag design, and label are virtually identical to MMSD’s Milorganite bag," Ganzer wrote.

So, about that advertising display, well, here it is.

Now, there is quite a bit to say about that ad display. The names of the product are markedly different. While both use "organite" in the names as a reference to the organic material serving as a fertilizer, "mil" and "e-c" are very, very different. These are not homophones. They're not calling out the same origins. They are flatly different.

On the question of trade dress, sure, both products feature a logo at the top of the bag and then a house and lawn in the imagery. The imagery is basically the same as every fertilizer product, or at least most of them. Complaining about including a home and lawn on a home fertilizer product is, frankly, silly. As to the logos at the top of the bag, well, those sure do seem significantly different as well. Different shapes on the borders combine with the prominent use of the different brand names to draw a firm distinction between the two products.

As does, you know, the fact that Menards is putting them side by side specifically to distinguish them in the advertising. Nobody is looking at that display and drawing any confusion that the two products are the same, related, or from the same origin. The whole point of the display is to draw a distinction between the two.

Yet, despite all of this, the Sewerage District has put the possibility of a lawsuit on its agenda for an upcoming commission meeting.

"The commission action is simply to ensure we may file suit if negotiations break down without having to rush an item to agenda in late summer, especially with August recess," Ganzer said.

A lawsuit could seek damages, payment of any profits tied to selling e-Corganite and reimbursement of attorney's fees.

"However, MMSD has had a long and mutually beneficial relationship with Menards and we hope to continue selling our product in Menards stores," Ganzer wrote in the letter to the retailer. "My hope is that we can come to a resolution of this matter that will allow Menards to produce and market a competing biosolid fertilizer product, while simultaneously eliminating the risk of consumer confusion with MMSD’s product," the letter said.

There is no confusion. Menards has taken great pains to distinguish its products from those of the city. The only real question left is why Menards would bother agreeing to sell Milorganite at all any longer, given that the Sewerage District appears to want to bite the hand that feeds it.

Filed Under: e-corganite, fertilizer, milorganite, milwaukee, milwaukee metropolitan sewarage district, trademark
Companies: menards

Arizona County's Voting Machines Rendered Unusable By OAN-Financed Vote Auditors

from the nice-work,-cyber-idiots dept

The libs have been owned. They've been owned so thoroughly that Maricopa County, Arizona is going to need to buy millions of dollars of new electronic voting machines.

Arizona Secretary of State Katie Hobbs sent a letter Thursday to Maricopa County officials to let them know that the fake "audit" of the 2020 election probably ruined hundreds of voting machines the county sent for "testing" under a subpoena from the state Senate. Since there's no knowing whether Cyber Ninjas, the QAnon enthusiasts running the audit, had messed up the machines, they can't safely be used again in future elections.

Once the machines were no longer under Maricopa County's control, Hobbs explained, the "chain of custody" was broken, leaving her with "grave concerns regarding the security and integrity of these machines," she wrote.

Before we get into the more expensive implications of this, let's backtrack a little to see how this came to be.

For months leading up to the 2020 presidential election, President Donald Trump and his enablers claimed the upcoming election would be fraudulent. Suspecting he was on his way out, Trump ramped up his baseless claims that everything from voting machines to mail-in votes couldn't be trusted.

Once he had lost, the claims went into overdrive. The election had been "stolen." Hundreds of true believers stormed the Capitol on January 6, 2021 with the intent of preventing the election from being certified as a win for Joe Biden.

The claims of fraud continued. Nobody could prove any fraudulent activity had occurred but Trump and his acolytes continued to insist Trump had been illegally removed from power. This group of idiots included several Congressional reps and Senators. It also included everyone from a pillow salesman to a cybersecurity "expert" who claimed his inability to properly compose a tweet was evidence of malicious hacking.

Welcome to Maricopa County, where everyday is another scene cut from "Veep" because it was considered too improbable. State senate Republicans hired the ridiculous-sounding "Cyber Ninjas" to perform "America's Audit" (called this despite the fact it's confined to a single county in a single state) -- a recount of every vote in the county.

Since then, it's been fiascoes piled on debacles piled on a foundation of conspiracy theories. It started with auditors working with blue pens that could be used to change ballots. Auditors are only supposed to use red pens, which can't be read by auditing equipment and voting machines.

That's the most sane part of this. The CEO of the Cyber Ninjas has tweeted out stuff about "stopping the steal." The audit is partially financed by One America News Network, one of several entities sued for defamation by Dominion Voting Systems. At one point, auditors were using UV lights and 5k cameras to search for traces of bamboo, following up on the absurd claim that a box of filled ballots had been shipped in from China. How this was supposed to prove a link between ballots and China is best left to the brain geniuses at Cyber Ninja, who probably assume nothing is above slanty-eyed furriners and their desire to elect Sleepy Joe.

Even the Republican-dominated Maricopa County Board of Supervisors found the whole thing appalling. Its scathing letter to state Senate leadership pointed out the auditors' inexperience and apparent inability to count and said the whole thing was nothing more than the state Senate placing election integrity in the hands of "grifters and con artists."

This brings us back to the latest insanity. The voting machines were turned over to the Cyber Ninjas, who then acted as though chain-of-custody isn't that big of a deal. Since they followed none of the steps needed to ensure the machines remained intact and secure, the county has no choice but to decertify them once the Ninjas are done entertaining their "stolen election" fantasies. This isn't just the Secretary of State saying this. This is also the DHS's election security experts.

[DHS officials] unanimously advised that once election officials lose custody and control over voting systems and components, those devices should not be reused in future elections. Rather, decommissioning and replacing those devices is the safest option as no methods exist to adequately ensure those machines are safe to use in future elections.

As many as 358 machines may be affected by the actions of cybersecurity "experts" who have no previous experience with either election security or conducting a vote audit. The total cost for replacement could be more than $6 million.

The only upshot is that local residents won't be paying for these. Thanks to the agreement reached with the so-called auditors, Maricopa County isn't responsible for costs like these. No, it will be the entire state paying for the clusterfuck that is "America's Audit." The state is on the hook. And with lawsuits already flying, taxpayers will be out even more money no matter what the outcome of this litigation is. And it all could have been prevented by either 1) hiring competent people to conduct the audit or 2) Senate Republicans not indulging the worst members and supporters of their party.

Filed Under: arizona, audit, chain of custody, cybersecurity, election security, elections, maricopa county, recount, voting machines
Companies: cyber ninjas

Florida Man Signs Blatantly Corrupt And Unconstitutional Social Media Bill, Cementing Florida As Tech Laughing Stock

from the wasting-taxpayer-funds dept

And, off we go. We've talked about a bunch of states pushing blatantly unconstitutional social media content moderation bills, with Florida leading the pack as the most eager to waste taxpayer money on something so obviously bogus. As you'll recall, at the end of last month, Florida really added some unconstitutional icing on the unconstitutional cake by exempting Disney (and any other company that owned a theme park in Florida) from the bill's social media requirements.

The bill has a few different unconstitutional provisions, but the one getting the most attention is that it bans non-theme park associated websites from removing content or accounts from people running for office. There are also the ridiculous transparency clauses that have become stupidly popular of late, and which really serve as a smokescreen to allow users to sue websites for being moderated.

And despite tons of experts explaining why this is unconstitutional, Governor Ron DeSantis -- who made this bill a key plank in his "look at me, I'm a MAGA culture warrior" platform -- has now signed the bill. And to put a clown show cherry on top of the censorious, unconstitutional cake, DeSantis highlighted infamous provocateur and fabulist James O'Keefe from Project Veritas, who attended the bill signing, and is currently suing Twitter for defamation over its reasons for kicking him off their platform.

Social media companies “use secret algorithms and shadow banning to shape debates and control the flow of information,” DeSantis said. “But yet they evade accountability by claiming they’re just neutral platforms, even as they amplify partisan agendas and censor dissent. Every day, they act as the proverbial Big Brother, and 2021 looks an awful lot like the fictitious 1984.”

I mean, I just can't even bother to respond to this nonsense.

As the Orlando Sentinel article notes, this attack on internet companies comes at the same time that Miami, in particular, has been hyping itself up as a good destination for tech startups. Except that this bill would create a massive liability regime for any internet company that hosts any user-generated content. I mean, unless they buy one of the thousands of theme parks found around Florida.

None of that will matter in the long run, because this bill is going to be tossed out eventually, after DeSantis wastes a ton of taxpayer funds trying and failing to defend this bill in court. The bill is (1) pre-empted by Federal law, as Section 230 makes clear, and (2) a blatantly unconstitutional violation of the 1st Amendment's prohibition on laws that infringe upon speech rights, not to mention a pretty obvious attack on basic property rights.

But, these days, things like the Constitution and free speech take a back seat to Republican culture warrioring and victim-playing.

Even some Republicans recognize just how dumb the bill is:

“My concern is about potential candidates, about crazy people, Nazis and child molesters and pedophiles who realize they can say anything they want ... if all they do is fill out those two pieces of paper,” said Fine, R-Brevard County.

Though, it's notable that Fine still voted for the bill, despite recognizing that a key clause is going to have wildly stupid consequences. And that's basically all you need to know about why Florida will never become the tech hub it pretends it wants to be.

Filed Under: 1st amendment, content moderation, corruption, florida, ron desantis, section 230, social media

Washington State Has Sued A Patent Troll For Violating Consumer Protection Laws

from the state-ags-stopping-trolls dept

Landmark Technology, a patent troll that has spent 20 years threatening and suing small businesses over bogus patents, and received EFF’s Stupid Patent of the Month award in 2019, has been sued by the State of Washington.

Washington Attorney General Bob Ferguson has filed a lawsuit claiming that Landmark Technology has violated the state’s Patent Troll Protection Act, which bans “bad faith” assertions of patent infringement. Following a widespread campaign of patent demand letters, more than 30 states passed some kind of law placing limits on bad-faith patent assertions.

These laws face an uphill battle to be enforced. First of all, the Constitution places important limits on the government’s ability to penalize the act of seeking legal redress. Second, the Federal Circuit has specifically held that a high bar of bad faith must be established for laws that would penalize patent assertion.

Washington’s case against Landmark could be a major test of state anti-troll laws, and whether state anti-trolling and consumer protection laws can dissuade some worst-of-the-worst patent troll behavior.

The lawsuit is filed against “Landmark Technology A,” a recently created LLC that appears to be largely identical to the now-defunct “Landmark Technology.” The new company asserts the same patent against the same type of targets. The patent’s inventor is Landmark Technology owner Lawrence Lockwood.

Over 1,000 Demand Letters

Landmark threatens and sues small businesses over U.S. Patent No. 7,010,508, which was issued to Lockwood in 2006 and claims rights to “automated multimedia data processing network for processing business and financial transactions between entities from remote sites.”

The Washington case reveals just how widespread Landmark’s threats are. From January 2019 to July 2020, Landmark sent identical demand letters to 1,176 small businesses all across the country. Those letters threaten to sue unless Landmark gets paid a $65,000 licensing fee. 

Landmark essentially insists that if you use a website for e-commerce, you infringe this patent. In recent years, it’s filed suit against candy companies, an educational toy maker, an organic farm, and a Seattle bottle maker, just to name a few. 

Or as the Washington State Attorney General put it:

[T]he company broadly and aggressively misuses the patent claims, targeting virtually any small business with a website, seemingly at random. Landmark claims that common, near-ubiquitous business webpages infringe on its patent rights — such as small business home pages, customer login pages, new customer registration and product-ordering pages.

“Landmark extorts small businesses, demanding payment for webpages that are essential for running a business,” Washington Attorney General Ferguson said. “It backs them into a corner — pay up now, or get buried in legal fees. I’m putting patent trolls on notice: Bully businesses with unreasonable patent assertions, and you’ll see us in court.”

According to the AG’s press release, four Washington companies settled for between $15,000 and $20,000 each to avoid litigation costs. The lawsuit seeks restitution for those companies.

The patents created by Landmark owner Lawnrence Lockwood patents have been used in well over 150 lawsuits filed by Landmark Technology and Landmark Technology A; as well as at least 40 cases filed by his earlier company PanIP, which sued dozens of early e-commerce websites by 2003. Given what we now know about the more than 1,000 letters sent just in 2019 and 2020, the litigation record seems like just the tip of the iceberg.

The U.S. Patent and Trademark Office found in a 2014 review that the ’508 patent was likely to be invalid because it didn’t actually explain how to do the things it claimed. However, that case settled before the patent could be invalidated.

The USPTO is an office that labors under industry capture. Its fees are paid by patent owners, and in practice it works for patent owners far too often—not users or small business owners. While review processes like inter partes review (IPR) are useful in restoring some balance to the system, it’s critical that the worst abusers of the patent system be treated as a serious consumer protection problem. It’s certainly worthwhile for states to experiment and try to find ways to deter abuse, within the bounds of due process.

Patent owners who demand licensing fees from hundreds or thousands of individuals based on a patent that clearly should be found invalid, for broadly used web technology, are essentially engaging in widespread extortion, as AG Ferguson states. When patent owners won’t let users set up even a basic, out-of-the-box website without facing a demand letter, it’s not just an economic problem—it’s a threat to free expression.

Republished from the EFF Deep Links blog

Filed Under: bob ferguson, consumer protection, patent trolls, patents, washington
Companies: landmark technology