Facebook Caves To Australia: Will Restore Links After Government Gives It More Time To Negotiate Paying For News Links

from the still-not-great dept

Facebook is restoring news links in Australia after the government agreed to amend the proposed link tax law. We'll explain the details down below, but at the very least, this shows part of the reason Facebook did what it did, when it did. The end result still sucks, and I wish Facebook had stood its ground here because this portends a significant closing off of the open internet.

Many of the people who were annoyed over my support of Facebook's decision last week to block all news links in Australia kept saying "but the law hasn't passed yet -- why would they do this now?" Except... that ignored the reality of the situation. Facebook had announced last summer that it would remove links to all news if the law wasn't changed. And the Australian Parliament mocked Facebook and refused to make any changes to the law -- which was set to pass this week.

So, Facebook showed that it was serious about what it said last September, and it did so days before the law was supposed to pass... and now the Australian government has agreed to make changes. So, Facebook did get something out of making the move last week. Unfortunately, they didn't get nearly enough, and the end result is a disaster for the open web, but good for Rupert Murdoch.

The law is still really bad. The only major difference is that Facebook gets a little more time to cut a deal with Murdoch and other Australian news org owners:

But on Monday, the Australian government added amendments to the proposed code. That included a two-month mediation period, giving the two sides more time to negotiate commercial deals that could help Facebook avoid having to work under the code’s provisions.

In exchange, Facebook agreed to restore news links and articles for Australian users “in the coming days,” according to a statement from Josh Frydenberg, Australia’s treasurer, and Paul Fletcher, the minister for communications, infrastructure, cities and the arts.

“Importantly, the amendments will strengthen the hand of regional and small publishers in obtaining appropriate remuneration for the use of their content by the digital platforms,” the statement added.

Campbell Brown, Facebook’s vice president of global news partnerships, said in a statement, “We’re restoring news on Facebook in Australia in the coming days. Going forward, the government has clarified we will retain the ability to decide if news appears on Facebook so that we won’t automatically be subject to a forced negotiation.”

I honestly don't know what this actually means for the future of the law, but it still looks like a mess. Having Facebook pay for any links to news articles should be a non-starter. It is fundamentally against the idea of an open web. People who keep insisting that this is not a "tax" or that it's somehow about "competition" are wrong and fundamentally misrepresenting what is happening here. Yes, Facebook and Google are big. Yes, if there were negotiating a deal they would have leverage. But -- and here's the important part -- there's nothing to negotiate over here, because there's no requirement anywhere to pay for links, because that's fundamentally stupid and against the idea of an open internet.

So, those who keep saying this is necessary because without it the media organizations in Australia "don't have bargaining power" against Google and Facebook are simply missing the point. I mean, those same media organizations do have bargaining power with a site like, let's say, Techdirt. I link to them sometimes. They're a hell of a lot bigger than me. So, does this mean that I should be able to go to the Australian Competition authority and demand they make News Corp pay me when I link to them? That makes no sense at all. There should never need to be any negotiation or any discussion about bargaining power over links because links are fundamentally free.

And, yet, the end result of this deal is that it sounds like Facebook is effectively caving and agreeing to pay for links. The "compromise" appears to be just that Facebook gets a few more months to negotiate what it will pay (and if those negotiations fail, Australian arbitrators will simply choose how much it pays). This remains a very bad and dangerous idea, that is going to lead to a big mess around the globe. Lots of other industries are going to start demanding payments for links as well, and it puts the fundamental nature of the open internet under attack.

Filed Under: australia, competition, link tax, links, negotiations, news, rupert murdoch
Companies: facebook, news corp.

Australian News Sites Shocked & Upset To Learn They Don't Need To Rely On Facebook For Traffic!

from the wait,-that's-possible?!? dept

I am still perplexed and confounded at how many people seem to think that Facebook is the one at fault for blocking links to news in Australia. Again, the law (that was about to be approved by the Australian Parliament despite Facebook warning them months ago that it would be forced to block news links if it went forward in its current form) would have been a disaster for the open web. And that's even if you believe that Facebook itself has been a disaster for the open web. You can say that Facebook is the worst company in the world... and still recognize that this was the right move.

The law mandated that if Facebook had any links to news, then it had to negotiate a deal to pay certain news organizations (mainly Australia's largest news organizations, where Rupert Murdoch is the dominant owner in a news industry that is one of the most consolidated in the world). If Facebook and Murdoch couldn't reach an agreement, then they had to go to binding arbitration in which an arbitrator would simply tell Facebook how much it had to give Murdoch and other major media owners. Some have argued that this is not a tax, but... having the government step in to force a company to pay money for doing business is, by any normal definition, a tax. Though, this is actually worse than a tax, because it's not putting the money into the hands of the government to be invested in public works. It's going to one of the richest people in the world. For what? For failing to adapt to a changing market.

As we noted a few years ago, it's truly stunning that Murdoch, who has spent much of his life going around the world preaching the gospel of "free market" and deregulation, completely changed his tune when he completely misunderstood the internet, and saw multiple internet investments disappear. So he turns around and demands that the companies who actually innovated simply have to give him money? That doesn't sound like a free market. It sounds like welfare for a billionaire who's upset he's not even richer.

Even so, the most bizarre thing about last week's story is how many Facebook haters who have insisted for years that Facebook "killed" the news business were absolutely apoplectic that Facebook was getting out of the news business entirely. You'd think they'd celebrate. Facebook can't keep killing the journalism business if it's not in that business any more.

The other bizarre reaction -- which filled my Twitter feed to a point of ridiculousness for days -- was the claim that Facebook was somehow "blocking important news" in Australia, including news about the pandemic and vaccines. Except... it wasn't. No news was "blocked." Just links to news on Facebook. All of these news organizations have websites. And many have apps. And they all still exist.

Indeed, the most amusing thing in all of this is that people in Australia are suddenly discovering that they don't need Facebook for news. The Australian Broadcasting Company (ABC) saw its own news app shoot to the top of the Apple App Store charts in Australia. Ironically, the original draft of this stupid law was so biased towards Murdoch that it originally excluded ABC from getting any money, and was only added later, after some folks pointed out how blatantly corrupt it was to leave them out and just funnel more money to Murdoch. But it's not just ABC that has benefited. In a Reuters story, News Corp's executive chairman in Australia, Michael Miller, admitted that direct traffic to their websites was way up as referrals from Facebook disappeared:

“Definitely referral traffic was nonexistent ... while at the same time direct traffic to our websites was up in double digits,” he told the inquiry.

That... seems like a good thing? But, of course, this was never actually about helping news organizations like this. It was always about the cash transfers. Because immediately after Miller admits that direct traffic to their websites is way up, he demands that the Australian Competition and Consumer Commission (ACCC) "scrutinize Facebook's move."

I mean... what the fuck is going on here?

Rather than having Facebook mitigate your traffic, which is what you've been complaining about for years, the company has exited the space, leading to a massive jump in direct traffic. The reaction here shows pretty clearly that the problem is not Facebook. The problem is that News Corp. and other Australian news organizations are too lazy to actually do anything with all of this direct interest. Facebook just dumped a direct connection to users right in these news organizations' laps -- removing Facebook as a middleman -- and the news organizations' response is... to blame Facebook and try to get the Competition authority to go after them. For what? Helping them? This whole thing is so bizarre.

The same Reuters report notes that traffic from Facebook to Australian news sites plummeted after the ban, as you'd expect. But, again, isn't that what all the Facebook haters wanted in the first place? To get Facebook out of the news intermediary business?

It seems the truth is pretty self-evident: this was all a greed play. They just want Facebook's money, but they don't want to actually do the work to earn it.

Filed Under: australia, direct traffic, link tax, news tax, tax, traffic
Companies: abc, facebook, news corp.

The Bizarre Reaction To Facebook's Decision To Get Out Of The News Business In Australia

from the it's-quite-reasonable dept

None of this should have been a surprise. Back in September we wrote about Facebook publicly saying that if Australia went forward with its ridiculous attack on the open internet, and instituted a "news link tax" on Facebook and Google, that it would block news links on Facebook in Australia... and basically everyone ignored it. So, yesterday, when Facebook announced that it was no longer allowing news to be shared in Australia (and relatedly, no longer allowing the sharing of Australian news services on Facebook), it should not have been a surprise.

And yet... it seemed to make tons of people freak out for all the wrong reasons. Almost everyone started blaming and attacking Facebook. And, look, I get it, Facebook is a terrible, terrible company and deserves lots of blame for lots of bad things that it does. But this ain't it. There are a lot of examples of this, but because he's the top member of the House of Representatives working on antitrust issues, I'll specifically call out Rep. David Cicilline's response:

That says:

If it is not already clear, Facebook is not compatible with democracy.

Threatening to bring an entire country to its knees to agree to Facebook’s terms is the ultimate admission of monopoly power.

But that's completely nonsensical. We can argue about whether or not Facebook is "compatible with democracy" but the simple facts of the situation are that Australia -- pushed heavily by Rupert Murdoch -- has decided to put in place a plan to tax Google and Facebook for any links to news. The bill has all sorts of problems, but there are two huge ones that should concern basically anyone who supports a free and open internet.

First is the link tax. This is fundamentally against the principles of an open internet. The government saying that you can't link to a news site unless you pay a tax should be seen as inherently problematic for a long list of reasons. At a most basic level, it's demanding payment for traffic. There are two entire industries out there based entirely around trying to get more traffic from these companies: "search engine optimization" and "social media management." The reasons there are those industries is because everyone else in the world has figured out that having prominent links on search engines and social media is valuable in its own right and that it's up to the sites that get those links, and the corresponding traffic, to make use of it.

But here, a bunch of lazy newspaper execs who failed to adapt and to figure out better internet business models not only want the traffic, they also want to get paid for it.

This is like saying that not only should NBC have to run an advertisement for Techdirt, but it should have to pay me for it. If that seems totally nonsensical, that's because it is. The link tax makes no sense.

And, most importantly, as any economist will tell you, taxing something doesn't just bring in revenue, it decreases whatever you tax. This is why we have things like cigarette taxes and pollution taxes. It's a tool to get less of something. So, in this case, Australia is saying it wants to tax links to news on Facebook, and Facebook responds in the exact way any reasonable economist would predict: it says that's just not worth it and bans links. That's not incompatible with democracy. It's not bringing a country to its knees. The country said "this is how much news links cost" and Facebook said "oh, that's too expensive, so we'll stop."

Contrary to the idea that this is an "attack" on journalism or news in Australia, it's not. The news still exists in Australia. News companies still have websites. People can still visit those websites.

Indeed, the people who are saying that this move by Facebook is somehow an "attack" on news or an attack on Australian sovereignty seem to be admitting more than they'd really like: that they think Facebook must be a dominant source of news in the country.

I mean, if Facebook is really such a problem, shouldn't they all be celebrating? This is Facebook saying "okay, okay, we'll completely remove ourselves from the news business." Since everyone was complaining that Facebook was too much of a presence in the news business... isn't that... a victory?

And we haven't even gotten to the other problematic part of the law -- which is that it requires Facebook and Google to give newspapers heads up to algorithmic changes. This is completely disconnected from reality. Facebook and Google may make multiple algorithm changes every day, just to keep their services running. Having to tell newspapers (and them alone) about those changes with a few weeks notice is basically giving those news organizations the keys to the kingdom: it's telling them how to game the algorithms. If you think bogus clickbait is a problem now, just imagine what it's like when all of the Australian press get to know the secrets behind the algorithm, and get to prepare for any changes.

The whole story is absolutely ridiculous. And the most incredible thing is that no matter what Facebook did here it would have gotten yelled at. And the proof is not hard to find. Because just an hour or two before Facebook made this announcement, Google went the other way -- coming to an agreement to pay Rupert Murdoch for featuring Murdoch-owned news organizations content on Google. And people freaked out, complaining about Google helping fund Rupert Murdoch's disinformation empire. Except... that's the whole point of the law? So it's a bit bizarre that the same people are mad about both Facebook's decision to not give free money to Rupert and Google caving to do exactly that:

So... it's bad to pay Murdoch. And it's bad not to pay Murdoch. There is no consistency or principle behind all this other than people so focused on "Facebook and Google must be evil, so even when they do the exact opposite of each other, both are more evidence of evil."

This fight was not "Facebook v. Australia." Or "Facebook v. journalism" even though some ignorant or dishonest people are making it out to be the case. This was always "Rupert Murdoch v. the open web." We may not like Facebook in the role of the defender of the open web (and it's far from the best representative for the open web). But Facebook saying that it won't pay a link tax is a defense of the open web and against Rupert Murdoch. It's the right move, and whatever else you may think of Facebook, the company deserves credit for taking the right stand here.

Filed Under: australia, link tax, links, news, open internet, rupert murdoch
Companies: facebook, google, news corp.

Snippet Taxes Not Only Violate The Berne Convention, But Also Betray The Deepest Roots Of Newspaper Culture

from the won't-someone-think-of-the-poor-Rupert-Murdochs? dept

Last week Techdirt wrote about Australia's proposed News Media Bargaining Code. This is much worse than the already awful Article 15 of the EU Copyright Directive (formerly Article 11), which similarly proposes to force Internet companies to pay for the privilege of sending traffic to traditional news sites. A post on Infojustice has a good summary of the ways in which the Australians aim to do more harm to the online world than the Europeans:

1) The protection for press publications provided by [the EU's] DSM Article 15 does not apply to linking or the use of "very short extracts." The Code explicitly applies to linking and the use of extracts of any length. Accordingly, the Code applies to search engines and social media feeds, not just news aggregation services.

2) The Code forces Internet platforms to bargain collectively with news publishers or to be forced into rate setting through binding arbitration. DSM Article 15 does not require any similar rate-setting mechanism.

3) The Code imposes burdensome obligations on the platforms, some of which directly implicate free expression. For example, platforms would need to provide news businesses with ability to "turn off" comments on individual stories they post to digital platforms. DSM Article 15 imposes none of these obligations.

4) The Code prohibits the platforms from differentiating between an Australian news business and a foreign news business. This provision prevents platforms from exiting the market by taking care not to link to Australian news content. If the platform links to international news content, e.g., articles from the New York Times, it must also link to (and therefor pay for) Australian news content. DSM Article 15 does not contain a non-differentiation provision.

The same blog post points out that these elements are so bad they probably violate the Berne Convention -- the foundational text for modern copyright law. Article 10(1) of the Berne Convention provides that:

it shall be permissible to make quotations from a work which already has been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

Although the Berne Convention doesn't have any mechanism for dealing with violations, Berne obligations are incorporated in the World Trade Organization's Agreement on Trade Related Intellectual Property Rights (TRIPS) and in the Australia-US Free Trade Agreement. Both of those offer dispute resolution that the US could use to challenge the Australian Code if and when it comes into effect. The proposed schemes to force Internet companies to pay even for quoting snippets of news not only violate the Berne Convention: they are also a betrayal of the deepest roots of newspaper culture. That emerges from a fascinating post by Jeff Jarvis, a professor at CUNY's Newmark J-school. He writes:

For about the first century, starting in 1605, newspapers were composed almost entirely of reports copied from mailed newsletters, called avvisi, which publishers promised not to change as they printed excerpts; the value was in the selecting, cutting, and pasting. Before them the avvisi copied each other by hand. These were the first news networks.

In the United States, the Post Office Act of 1792 allowed newspapers to exchange copies in the mail for free with the clear intent of helping them copy and publish each others’ news. In fact, newspapers employed "scissors editors" to compile columns of news from other papers.

In other words, these new snippet taxes are wrong at every level: practical, legal and cultural. And yet gullible lawmakers still want to pass them, apparently to protect defenseless publishers like Rupert Murdoch against the evil lords of the mighty Information Superhighway.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: australia, berne convention, copyright, google news, history, journalism, link tax, news, rupert murdoch, snippet tax
Companies: facebook, google

Microsoft Offers To Break The Web In A Desperate Attempt To Get Somebody To Use Its Widely-Ignored Bing Search Engine

from the opportunistic-much? dept

One of the key battles surrounding the EU Copyright Directive involves the threshold at which upload filters will block the use of copyright material in things like memes and mashups. A year ago, Germany was proposing ridiculously tight restrictions: 128-by-128 pixel images, and three-second videos. Now, it is framing the issue in terms of uses that aren't "automatically" blocked by upload filters. The proposed limits here are 15 seconds of video or audio, 125K graphics, and 160 -- yes, 160 -- characters of text (original in German). Even these tiny extracts could be subsequently blocked by upload filters, depending on the circumstances.

The worsening situation over upload filters has obscured the other bad idea of the EU Copyright Directive: the so-called "link tax", which would require large Internet companies like Google to pay when they use even small amounts of news material. One worrying development in this area is that the idea has spread beyond the EU. As Techdirt reported, Australia is bringing in what amounts to a tax on Google and Facebook for daring to send traffic to legacy news organizations -- notably those of Rupert Murdoch. In July last year, the Australian government released a draft of what is now dubbed the "News Media Bargaining Code". One of the people arguing against the idea is Tim Berners-Lee (pdf):

Requiring a charge for a link on the web blocks an important aspect of the value of web content. To my knowledge, there is no current example of legally requiring payments for links to other content. The ability to link freely -- meaning without limitations regarding the content of the linked site and without monetary fees -- is fundamental to how the web operates, how it has flourished till present, and how it will continue to grow in decades to come.

He concludes: "If this precedent were followed elsewhere it could make the web unworkable around the world." This, indeed, is the danger here: if Australia and the EU go ahead with their plans, it is likely to become the norm globally, with serious consequences for the Internet as a whole.

In response, Google has threatened to pull out of Australia entirely. That's probably just part of its negotiating strategy. In a blog post from a couple of months ago, Mel Silva, VP for Google Australia & New Zealand, wrote: "we strongly believe that with the practical changes we've outlined [in the post], there is a path forward." Similarly, Australian's Prime Minister, Scott Morrison, is now talking of a "constructive" conversation with Google's CEO, Sundar Pichai. But that hasn't stopped Microsoft sensing an opportunity to make life harder for its rival in the online search market. Microsoft's President, Brad Smith, has published the following intervention:

Microsoft fully supports the News Media Bargaining Code. The code reasonably attempts to address the bargaining power imbalance between digital platforms and Australian news businesses. It also recognises the important role search plays, not only to consumers but to the thousands of Australian small businesses that rely on search and advertising technology to fund and support their organisations. While Microsoft is not subject to the legislation currently pending, we'd be willing to live by these rules if the government designates us.

And here's why it "fully supports" this misguided link tax:

Microsoft will ensure that small businesses who wish to transfer their advertising to Bing can do so simply and with no transfer costs. We recognise the important role search advertising plays to the more than two million small businesses in Australia.

We will invest further to ensure Bing is comparable to our competitors and we remind people that they can help, with every search Bing gets better at finding what you are looking for.

That is, in a desperate attempt to get someone to use its still largely-ignored search engine Bing, Microsoft is apparently willing to throw the Web under the bus. It's an incredibly short-sighted and selfish move. Sure, it's legitimate to want to take advantage of a rival's problems. But not to the extent of causing serious harm to the very fabric of the Web, the hyperlink.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: australia, bing, competition, google tax, link tax, links, news
Companies: google, microsoft

Google Threatens To Pull Out Of Australia Entirely; Australians Demand That It Both Stay And Pay News Orgs For Giving Them Traffic

from the how-does-this-make-any-sense dept

For the last year, we've been highlighting how Australia's rush to create a Google News tax is so stupid. It follows similar efforts in Europe and a few other places, where newspapers that spent years dismissing the internet and doing little to adapt, are now whining that Google is... sending them free traffic and not paying them for it.

It's truly bizarre. Google sends lots of traffic to news organizations. Tons of news organizations employ search engine optimization experts who work hard to get even more traffic from Google. But... around the globe, many of them are demanding that Google also pay them for sending them traffic. Back in 2014, Google shut down its Google News offering in Spain when that country passed a similar law. Over the past few months, Google has tried to explain to Australian officials just how incredibly stupid this plan is, but Australian officials (and the newspaper lobbyists down under) don't seem to care.

Last week, Google finally pulled out the nuclear option, saying that it might just pull out of Australia entirely if the law passes. That's an even bigger threat than the one Facebook made a few months back, when it claimed it would likely block the ability of anyone in Australia to share news on Facebook. But Google says it may shut down entirely in Australia:

“If this version of the code were to become law, it would give us no real choice but to stop making Google search available in Australia,” Silva told senators. “And that would be a bad outcome not only for us, but also for the Australian people, media diversity, and the small businesses who use our products every day.”

Australian officials flipped out that a private company that they're looking to tax at ridiculous levels might... no longer want to do business in their country. The country's Prime Minister, Scott Morrison, claimed that the country won't "respond to threats," but his administration seems to have no problem issuing more threats. Australia's Treasurer, Josh Frydenberg, said that it's "inevitable" that Google and Facebook will have to pay news organizations for daring to send them free traffic.

Frydenberg also claims that Australia can be a "world leader" in passing such legislation, apparently totally ignorant of how many times other countries have already passed similar legislation, and how poorly it's gone. The Bloomberg article there mentions that pulling out of Australia would open up the market to competitors, but that assumes any of them would want to pay the pointless news tax as well.

The hubris level here remains astounding. Google and Facebook send these companies traffic. For free. It's free advertising. These news orgs hire experts to help them perform better on Google and Facebook. And now they want to be paid for it too? While politicians are pulling out the fainting couch in saying "how dare" Google and Facebook threaten to block the entire country, perhaps they might want to look more closely at why they're driving away these successful companies that their citizens (and constituents) clearly like using.

Filed Under: australia, google news, google tax, link tax, news, news tax
Companies: facebook, google

Australian Cops Are Pre-Criming Students Too, Setting Minors Up For A Lifetime Of Harassment

from the procedural-crime-generation dept

It's not just American law enforcement agencies turning kids into criminals. They're doing it in Australia too. In Florida, the Pasco County Sheriff's Office uses software to mark kids as budding criminals, using questionable markers like D-grades, witnessing domestic violence, or being the victim of a crime. The spreadsheet adds it all up and gives deputies a thumbs up to start treating students like criminals, even if they've never committed a criminal act.

Over in Australia, the process seems to be a bit more rigorous, but the outcome is the same: non-criminals marked (possibly for life) as potential criminals who should be targeted with more law enforcement intervention.

Victorian police say a secretive data tool that tracked youths and predicted the risk they would commit crime is not being widely used, amid fears it leads to young people from culturally diverse backgrounds being disproportionately targeted.

The tool, which had been used in Dandenong and surrounding suburbs, was only revealed in interviews with police officers published earlier this year.

Between 2016 and 2018, police categorised young people as “youth network offenders” or “core youth network offenders”.

It takes a bit more to be added to this secret list -- one police have managed to keep hidden from the general public. Even the program's name remains a secret. This means parents are never informed when cops decide their kids are criminals-in-development. It also possibly means schools aren't aware the data they're feeding the police is being used this way.

According to the research paper detailing the program, Victoria police have classified 40-60 students as "core youth network offenders." Another 240 students were classified as "youth network offenders." To get placed on these exclusive lists, students must be charged dozens of times with "offenses," running from 20 for the 10-14-year-old group to over 60 for 18-year-olds. It's unclear from the context of the report whether this means criminal offenses or in-school discipline "offenses," but the latter seems more likely. Someone criminally charged over 60 times before they reached the age of 18 wouldn't need to be on a secret youth offender list to be on law enforcement's radar.

The Victoria police appear to believe the tech is actually magic.

“We can run that tool now and it will tell us – like the kid might be 15 – it tells how many crimes he is going to commit before he is 21 based on that, and it is a 95% accuracy,” one senior officer told [researchers]. “It has been tested.”

Actual pre-crime, stripped of all the obfuscating language that normally surrounds statements on profiling/predictive policing programs. This program can actually predict criminal acts… at least according to its proponents and users. Presumably the police aren't locking up listed students ahead of any wrongdoing, but they're certainly increasing their interactions and surveillance of students the tool said will commit [x] crimes over the next few years.

And, like every goddamn predictive policing program that exists anywhere, it focuses on minorities and other disadvantaged residents.

In Dandenong, 67% of households spoke a language other than English at home, more than three times the national average, according to the 2016 census. Almost 80% of all residents had parents who were both born overseas, more than double the national average.

The weekly household income was $412 less than the Australian median, and the unemployment rate of 13% was almost double the national figure.

Cheer up. The cops are here to take everything that sucks about life and make it worse. Rather than address the underlying problems, law enforcement appears content to throw a spreadsheet over it and divert resources towards subjecting certain people to a lifetime of harassment. Then, when things inevitably get worse, they can ask for more money to buy more "smart" policing tech garbage that ensures this hideous, regressive loop remains unbroken.

Filed Under: abuse, australia, harassment, police, pre-crime, software

Aussie Brewer Keeps Digging Holes With Trademark Lawsuits, Now Owes Court Costs

from the stop-digging dept

If you can believe it, despite my storied fascination with the intersection of trademark law and alcohol, one battle between two Australian breweries flew under my radar. Sorry, okay? But it is worth writing about now, if only as it demonstrates the length to which some trademark protectionists will go, even when it ultimately causes that protectionist harm.

Laneway Brewery in Melbourne sued nearby La Sirene Brewing over its use of the word "Urban" in its "Urban Pale" offering. Laneway has a brew called "Once Bitter" and uses the term "Urban Ale" as its tagline, for which it had a registered trademark.

Laneway argues it has established a “substantial, exclusive and valuable reputation and goodwill” in Australia by reference to the Urban Ale trade mark.

“In addition, the Laneway Brewery products have become widely and favourably known and identified by the general public in Australia by reference to the trade mark,” the company says in documents lodged with the Federal Court.

The problems for Laneway started almost immediately. La Sirene immediately began arguing that the word "Urban" was generic in the brewing space, which, yes it is. On top of that, the use of "Urban Pale" is, in large part, descriptive of the product itself. La Sirene didn't seek trademarks for the term for that very reason. And, if that term is too generic and descriptive in the brewing industry to warrant trademark protection, then so too is Laneway's.

“The words ‘urban’ and ‘ale’ are in ordinary use and other persons would wish to use those words to describe beer and related products,” La Sirene argues in its cross claim.

La Sirene argues the urban ale trade mark should be cancelled, and is liable to be removed, given prior use by La Sirene and also Rockpool Dining Group (née Urban Purveyor Group Pty Ltd) on its Urban Brewing Company trade mark, registered March 2016.

And guess what? The court agreed. So, in trying to be a protectionist bully over a generic trademark it held, Laneway managed to get its own trademark cancelled as a result. Rather than admitting defeat, discontinuing the legal spend on this nonsense, and moving on... Laneway appealed. And will now have pay court costs for Las Sirene on top of it. Note in the quote below: Laneway does business currently as Urban Alley.

The notice of appeal it filed contended that the primary judge had made a mistake by cancelling the word mark, but the appeals court judges today said they were not persuaded that the primary judge had erred in his evaluation of the two marks.

Following the short hearing today, the court ruled that not only is the case to be dismissed, but Urban Alley will now have to pay for La Sirène’s legal costs.

Whoops. The only real silver lining here for Laneway is that it probably has finally found bedrock in this hole it's kept digging for itself. Though, if any brewery were capable of finding new and creative ways to continue its quest for self-harm, I suppose it would them.

Filed Under: australia, breweries, once bitter, trademark, urban, urban ale, urban pale
Companies: la sirene, laneway brewery

Five Eyes Countries Band Together To Complain About Facebook And End-To-End Encryption

from the breaking-Messenger-will-leave-criminals-with-only-dozens-of-secure-options dept

The world's law enforcement agencies are back at it, advocating for the demise of end-to-end encryption. The last time they all got together like this, they were complaining to Facebook for thinking about adding encryption to its Messenger service.

Because Facebook does so well reporting child porn to the proper authorities, the proper authorities have gathered to decry its decision to encrypt this service, claiming it would result in a lot of unobserved child porn being passed between users. With Facebook unable to eavesdrop on messages, the images and videos can be shared unnoticed.

And, again, the international law enforcement community is asking for weaker encryption… and namechecking Facebook as the cause of and potential solution to all the world's child porn problems. The new "international statement" opens up with a united declaration that everyone loves encryption, before getting to the long list of "buts."

We, the undersigned, support strong encryption, which plays a crucial role in protecting personal data, privacy, intellectual property, trade secrets and cyber security. It also serves a vital purpose in repressive states to protect journalists, human rights defenders and other vulnerable people, as stated in the 2017 resolution of the UN Human Rights Council. Encryption is an existential anchor of trust in the digital world and we do not support counter-productive and dangerous approaches that would materially weaken or limit security systems.

Of course, that last sentence is a lie. At best, it's completely disingenuous. Almost immediately following this assertion that the undersigned have no intention or pursuing counterproductive/dangerous approaches, the Five Eyes crew (along with India and Japan) lists the counterproductive/dangerous ways they'd like encryption to be broken.

Particular implementations of encryption technology, however, pose significant challenges to public safety, including to highly vulnerable members of our societies like sexually exploited children. We urge industry to address our serious concerns where encryption is applied in a way that wholly precludes any legal access to content. We call on technology companies to work with governments to take the following steps, focused on reasonable, technically feasible solutions:

• Embed the safety of the public in system designs, thereby enabling companies to act against illegal content and activity effectively with no reduction to safety, and facilitating the investigation and prosecution of offences and safeguarding the vulnerable;

• Enable law enforcement access to content in a readable and usable format where an authorisation is lawfully issued, is necessary and proportionate, and is subject to strong safeguards and oversight; and

• Engage in consultation with governments and other stakeholders to facilitate legal access in a way that is substantive and genuinely influences design decisions.

I'm not sure what sort of "strong encryption" can handle all of these weak spots being introduced without turning into something easily misused, but these government reps are pretty sure people at these companies will come up with something. These governments have convinced themselves they're "stakeholders" in private conversations between citizens that are facilitated by services like Facebook's Messenger.

And that's what this is about. The statement cites Facebook's success in handling child porn while trying to use that against it.

In 2018, Facebook Messenger was responsible for nearly 12 million of the 18.4 million worldwide reports of CSAM [child sexual abuse material to the US National Center for Missing and Exploited Children (NCMEC)]. These reports risk disappearing if end-to-end encryption is implemented by default, since current tools used to detect CSAM [child sexual abuse material] do not work in end-to-end encrypted environments.”

If this is true, then there's nothing else that can be done. Weakened encryption that allows Facebook to intercept users' messages does nothing for the millions of Facebook users who've never trafficked in illegal content. The company can either give users security and privacy, or it can give these governments what they want. There's no middle ground that's going to accommodate both groups.

And this push against Facebook is working. These statements were converted into news articles claiming Facebook is "responsible" for 94% of all reported child porn. But that wording suggests Facebook is the problem, rather than its users. Facebook made 94% of the reports, showing once again it's been doing what it can to combat the problem.

Its decision to offer encryption to Messenger users isn't being made lightly. It's aware of the downside. But it's also aware of the threat posed to its users by a number of malicious entities, which include authoritarian governments and state-sponsored hackers. If it wants to protect its millions of innocent users, it has to offer the same shelter to criminals using the service. That's how it goes. The middle ground governments think the private sector should nerd towards simply doesn't exist.

Filed Under: australia, backdoors, canada, encryption, five eyes, india, japan, new zealand, security, uk, us
Companies: facebook

Burger King Fights Proxy War Against McDonald's Over Hungry Jack Trademark Dispute

from the shots-fired dept

As one of the largest private employers in the world, it probably shouldn't come as too big a surprise that McDonald's is fairly protective of its trademarks. The company, large legal coffers though it has, is not undefeatable, however. It was only a year or so ago, for instance, that McDonald's famously lost its "Big Mac" trademark in Europe when another chain, Supermacs, got it cancelled as it expanded into more European markets.

Well, now Mcdonald's is facing another trademark issue in Australia. Down Under, there is a fast food chain called Hungry Jack's, which is actually a part of Burger King. Burger King, of course, is McDonald's chief global rival. There is something of a proxy war currently being waged over Hungry Jack's "Big Jack" sandwich, with McDonald's crying trademark infringement over its "Big Mac" trademark.

McDonald's Asia-Pacific filed Federal Court proceedings on August 28 against Hungry Jack's over its rival's new burger trademark, which it claims is "substantially identical with or deceptively similar" to its own Big Mac trademark.

Hungry Jack's has been the owner of the registered trademark "Big Jack" since November last year but McDonald's says the trademark "is liable to be cancelled, and should in the exercise of the court's discretion be cancelled" on a number of grounds, including that it is "likely to deceive or cause confusion" among consumers.

So let's stipulate immediately that the rival for McDonald's absolutely constructed a sandwich burger that has a lot of similarities to a Big Mac. The construction of the food is similar and the names both have the word "Big" in them, and then culminate in designators for the companies selling them, but those names rhyme. Big Mac. Big Jack. You get it.

So, with all of that stipulated, is this trademark infringement? Well, as always, that comes down to the question of whether there will be public confusion as to the source of the products. And Hungry Jack's is apparently prepared to argue that there won't be.

In a defence filed in the Federal Court on Friday, lawyers for Hungry Jack's said consumers were "well aware" of the "competitive rivalry between Hungry Jack’s and [McDonald's]" and it had not infringed the latter's trademarks. Consumers would not be deceived into thinking the Big Jack was a McDonald's product, they said.

Hungry Jack's said it was entitled to use the Big Jack trademark, which played on the company's name and the name of "its founder and current owner, Jack Cowin". The word Jack was "closely associated by consumers with Hungry Jack's' goods and services", the company's lawyers said.

Add to the above that much of the complaints McDonald's lodges aren't relevant in a trademark dispute. The recipe for the sandwich doesn't really matter, unless McDonald's has trademarked this construction. If it has done so, it certainly hasn't said as much. The word "Big" in the name of each product basically doesn't matter, since it is both descriptive and in common use in trademarks all over the place. Instead, this is going to come down to whether "Jack" is too similar to "Mac", sufficiently so to lead to public confusion.

Which is where Hungry Jack's point is made. The rivalry between these two is as famous in Australia as Burger King versus McDonald's is in America. Given that notoriety, and the simple fact that the dispute is over two words that very specifically designate the origin of the product, it's hard to imagine the public being confused by any of this.

In other words, it would seem that McDonald's would need to bring instances of actual confusion to court to make this lawsuit successful.

Filed Under: australia, big jack, big mac, trademark
Companies: burger king, hungry jack, mcdonald's