Now It's Harvard Business Review Getting Section 230 Very, Very Wrong

from the c'mon-guys dept

It would be nice if we could have just a single week where some major "respected" publication could do the slightest bit of fact checking on their wacky articles on Section 230. It turns out that's not happening this week. Harvard Business Review has now posted an article saying It's Time to Update Section 230 written by two professors -- Michael Smith of Carnegie Mellon and Marshall Van Alstyne at Boston University. For what it's worth, I've actually been impressed with the work and research of both of these professors in the past -- even though Smith runs a program funded by the MPAA, that publishes studies about the internet and piracy, his work has usually been careful and thorough. Van Alstyne, on the other hand, has published some great work on problems with intellectual property, and kindly came and spoke at an event we helped to run.

Unfortunately, this piece for HBR does not do either Smith or Von Alstyne any favors -- mainly because it just gets so much wrong. It starts out, like so many of these pieces, with some mythmaking, that Section 230 was passed due to "naive" techno-optimism. This is just simply wrong, even if it sounds like a good story. It then (at least) does highlight some of the good that social media has created (Arab Spring, #MeToo, #BlackLivesMatter, and the ice bucket challenge). But then, of course, it pivots to all the "bad" stuff on the internet, and says that "Section 230 didn't anticipate" how to deal with that.

So, let's cut in and point out this is wrong. Section 230's authors have made it abundantly clear over and over again that they absolutely did anticipate this very question. Indeed, the very history of Section 230 is the history of web platforms trying to figure out how to deal with the ever-changing, ever-evolving challenge of "bad" stuff online. And the way that 230 does that is by allowing websites to constantly experiment, innovate, and adapt without fear of liability. Without that, you create a much worse situation -- one in which any "false" move by the website could lead to liability and ridiculously costly litigation. Section 230 has enabled a wide variety of experiments and innovations in content moderation to figure out how to keep platforms functioning for users, advertisers, and more. But, this article ignores all that and pretends otherwise. That's doing a total disservice to readers, and presenting a false narrative.

The article goes through a basic recap of how Section 230 works -- and concludes:

These provisions are good — except for the parts that are bad.

Amusingly, that argument applies to lots of content moderation questions as well. Keep all the stuff that's good, except for the parts that are bad. And it's that very point that highlights why Section 230 is actually so important. Figuring out what's "good" and what's "bad" is inherently subjective, and that's part of the genius of Section 230, is that it allows companies to experiment with different alternatives in figuring out how best to deal with things for their own community, rather than trying to comply with some impossible standard.

They then admit that there are other, non-legal, incentives that have helped keep websites moderating in a reasonable way, though they imply that this doesn't work any more (they don't explain why or how):

When you grant platforms complete legal immunity for the content that their users post, you also reduce their incentives to proactively remove content causing social harm. Back in 1996, that didn’t seem to matter much: Even if social media platforms had minimal legal incentives to police their platform from harmful content, it seemed logical that they would do so out of economic self-interest, to protect their valuable brands.

Either way, from there, there article goes completely off the rails in ways that are kind of embarrassing for two widely known professors. For example, the following statement is entirely unsupported. It is disconnected from reality. Hilariously, it is the very "misinformation" that these two professors seem so upset about.

We’ve also learned that platforms don’t have strong enough incentives to protect their brands by policing their platforms. Indeed, we’ve discovered that providing socially harmful content can be economically valuable to platform owners while posing relatively little economic harm to their public image or brand name.

I know that this is out there in the air as part of the common narrative, but it's bullshit. Pretty much every company of any size lives in fear of stories of "bad" content getting through on their platform, and causing some real world harm. It's why companies have invested so much in hiring thousands of moderators, and trying to find any kind of technological solution that will help in combination with the ever growing ranks of human moderators (many of whom end up being traumatized by having to view so much "bad" content). The idea that Facebook's business isn't harmed by its failures on this front or that the "socially harmful content" is "valuable" to Facebook is simply not supported by reality. There are huge teams of people within Facebook pushing back against that entire narrative. Facebook also didn't set up the massive (and massively expensive) Oversight Board out of the goodness of its heart.

What Smith and Van Alstyne apparently fail to consider is that this is not a problem of Facebook not having the right incentives. It's a problem of it being impossible to do this well at scale, no matter what incentives are in place, combined with the fact that many of the "problems" they're upset about actually being societal problems that governments are blaming on social media to hide their own failings in fixing education, social safety nets, criminal justice reform, healthcare, and more.

This paragraph just kills me:

Today there is a growing consensus that we need to update Section 230. Facebook’s Mark Zuckerberg even told Congress that it “may make sense for there to be liability for some of the content,” and that Facebook “would benefit from clearer guidance from elected officials.” Elected officials, on both sides of the aisle, seem to agree: As a candidate, Joe Biden told the New York Times that Section 230 should be “revoked, immediately,” and Senator Lindsey Graham (R-SC) has said, “Section 230 as it exists today has got to give.” In an interview with NPR, the former Congressmen Christopher Cox (R-CA), a co-author of Section 230, has called for rewriting Section 230, because “the original purpose of this law was to help clean up the Internet, not to facilitate people doing bad things.”

First off, Facebook is embracing reforms to Section 230 because it can deal with them and it knows the upstart competitors it faces cannot. This is not a reason to support 230 reform. It's a reason to be very, very worried about it. And yes, there is bipartisan anger at 230, but they leave out that it's for the exact opposite reasons. Democrats are mad that social media doesn't take down more constitutionally protected speech. Republicans are mad that websites are removing constitutionally protected conspiracy theories and nonsense. The paragraph in HBR implies, incorrectly, that there's some agreement.

As for the Cox quote, incredibly, this was taken from a few years ago, in which Cox appeared to have a single reform suggestion: clarifying that the definition of an Information Content Provider covers companies that are actively involved in unlawful activity done by users. And, notably (again, skipped over by Smith and Van Alstyne) that interview occurred just after FOSTA was passed by Congress -- and now it's widely recognized how FOSTA has a complete disaster for the internet, and has put tons of people in harm's way. That seems kinda relevant if we're talking about how to update the law again.

But Smith and Van Alstyne don't even mention it!

Instead, the fall back on tired, wrong, or debunked arguments.

Legal scholars have put forward a variety of proposals, almost all of which adopt a carrot-and-stick approach, by tying a platform’s safe-harbor protections to its use of reasonable content-moderation policies. A representative example appeared in 2017, in a Fordham Law Review article by Danielle Citron and Benjamin Wittes, who argued that Section 230 should be revised with the following (highlighted) changes: “No provider or user of an interactive computer service

that takes reasonable steps to address known unlawful uses of its services that create serious harm to others shall be treated as the publisher or speaker of any information provided by another information content provider in any action arising out of the publication of content provided by that information content provider.”

Of course, as we've explained, this is a solution that only a law professor who has never had to run an actual website could love. The problems with the "takes reasonable steps" argument are myriad. For one, it would mean that websites would constantly need to go to court to defend their content moderation practices -- a costly and ridiculous experience, especially when you have to defend it to people who don't understand the intricacies and trade-offs of content moderation. I saw this first hand just a couple months ago, in watching a print-on-demand website lose a court fight, because the plaintiff insisted that any mistake in its content moderation practices proved its efforts weren't "reasonable."

At best such a setup would mean that all content moderation would become standardized, following exactly whatever plan was chosen by the first few companies to win such lawsuits. You'd wipe out pretty much any attempt at creating new, better, more innovative content moderation solutions, because the only way you could do that is if you were willing to spend a million dollars defending it in court. And that would mean that the biggest companies (once again) would control everything. Facebook could likely win such a case, screwing over tons of competitors, and then everyone else would have to adopt Facebook's model (hell, I wouldn't put it past Facebook to offer to "rent" its content moderation system out to others) in such a world. The rich get richer. The powerful get more powerful. And everyone else gets screwed.

The duty-of-care standard is a good one, and the courts are moving toward it by holding social media platforms responsible for how their sites are designed and implemented. Following any reasonable duty-of-care standard, Facebook should have known it needed to take stronger steps against user-generated content advocating the violent overthrow of the government.

This is also garbage and taken entirely out of context. It doesn't mention just how much content there is to moderate. Facebook has billions of users, posting tons of stuff every day online. This supposes that Facebook can automatically determine "content advocating the violent overthrow of the government." But it does nothing whatsoever to help define what that content actually looks like, or how to find it, or how to explain those rules to every content moderator around the globe in a manner in which they'll treat content in a fair and equitable way. It doesn't take into account context. Is it "advocating the violent overthrow of the government" when someone tells a joke hoping President Trump dies? Is it failing a duty of care standard for someone to suggest that... an authoritarian dictatorship should be overthrown? There are so many variables, and so many issues here that to just toss out the idea that it's obvious a duty of care was not taken to allow for "content advocating the violent overthrow of a government" that is just shows how ridiculously naive and ignorant both Smith and Van Alstyne are about the actual issues, trade-offs, and challenges of content moderation.

They then try to address these kinds of arguments by setting up a very misleading strawman to knock down:

Not everybody believes in the need for reform. Some defenders of Section 230 argue that as currently written it enables innovation, because startups and other small businesses might not have sufficient resources to protect their sites with the same level of care that, say, Google can. But the duty-of-care standard would address this concern, because what is considered “reasonable” protection for a billion-dollar corporation will naturally be very different from what is considered reasonable for a small startup.

Yeah, but you only find that out after you're dead, spending a million dollars defending it in court.

And then... things go from just bad and informed, to actively spreading misinformation:

Another critique of Section 230 reform is that it will stifle free speech. But that’s simply not true: All of the duty-of-care proposals on the table today address content that is not protected by the First Amendment. There are no First Amendment protections for speech that induces harm (yelling “fire” in a crowded theater), encourages illegal activity (advocating for the violent overthrow of the government), or that propagates certain types of obscenity (child sex-abuse material).

Yes, that's right. They trotted out the fire in a crowded theater trope, which already is wrong, and then they apply it incorrectly. It's flat out wrong to say that there is no 1st Amendment protection in speech that induce harm. Much such content is absolutely protected under the 1st Amendment. The actual exceptions to the 1st Amendment (which, you know, maybe someone at HBR should have looked up) in this area are for "incitement to imminent violence" or "fighting words," both of which are very, very, very narrowly defined.

As for child sex-abuse material, that's got nothing to do with Section 230. CSAM content already violates federal criminal law and Section 230 has always exempted federal criminal law.

In other words, this paragraph is straight up misinformation. The very kind of misinformation that Smith and Van Alstyne seem to think websites should be liable for hosting.

Technology firms should embrace this change. As social and commercial interaction increasingly move online, social-media platforms’ low incentives to curb harm are reducing public trust, making it harder for society to benefit from these services, and harder for legitimate online businesses to profit from providing them.

This is, again, totally ignorant. They have embraced this change, because the incentives already exist. It's why every major website has a "trust & safety" department that hires tons of people and does everything they can to properly moderate their websites. Because getting it wrong leads to tons of criticism from users, from the media, and from politicians -- not to mention advertisers and customers.

Most legitimate platforms have little to fear from a restoration of the duty of care.

So long as you can afford the time, resources, and attention required to handle a massive trial to determine if you met the "duty of care." So long as you can do that. And, I mean, it's not like we don't have examples of how this plays out in other arenas. I already talked about what I saw in court this summer in the trademark field (not covered by Section 230). And we have similar examples of what happens in the copyright space as well (not covered by Section 230). Perhaps Smith and Van Alstyne should go talk to the CEO of Veoh... oh wait, they can't, because the company is dead, even though it won its lawsuit on this very issue a decade ago.

A duty of care standard only makes sense if you have no clue how any of this works in practice. It's an academic solution that has no connection to reality.

Most online businesses also act responsibly, and so long as they exercise a reasonable duty of care, they are unlikely to face a risk of litigation.

I mean, this is just completely disconnected from reality as we've seen. That trial I witnessed in June is one of multiple cases brought by the same law firm against online marketplace providers, more or less trying to set up a business suing companies for failing to moderate trademark-related content to some arbitrary standard.

What good actors have to gain is a clearer delineation between their services and those of bad actors.

They already have that.

A duty of care standard will only hold accountable those who fail to meet the duty.

Except for all the companies it kills in litigation.

This article is embarrassingly bad. HBR, at the very least, should never have allowed the blatantly false information about how the 1st Amendment works, though all that really serves to do is discredit both Smith and Van Alstyne.

I don't understand what makes otherwise reasonable people who clearly have zero experience with the complexities of social media content moderation to assume they've found the magic solution. There isn't a magic solution. And your solution will make things worse. Pretty much all of them do.

Filed Under: 1st amendment, content moderation, duty of care, fire in a crowded theater, incentives, marshall van alstyne, michael smith, section 230

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

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

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

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

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

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

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

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

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

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

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

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

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

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

10 Steps The Biden-Harris Administration Should Take To Bring Equity To Our Patent System

from the fixing-the-patent-system dept

This post is one of a series of posts we're running this week in support of Patent Quality Week, exploring how better patent quality is key to stopping efforts that hinder innovation.

A couple weeks ago, President Biden signed an executive order focused on promoting competition in the interests of American businesses, workers, and consumers, emphasizing the need to tackle high prescription drug prices that harm 1 in 4 Americans. Earlier this year, the President also signed an executive order to increase racial equity across all federal agencies.

Few agencies are as ripe for this kind of transformation as the U.S. Patent and Trademark Office (PTO)—the federal agency that oversees patents, trademarks, and designs.

The PTO’s work, which has often escaped scrutiny, is directly linked to issues of equity and rising prescription drug costs. As health and economic justice attorneys, we’ve worked for nearly two decades to increase equity in drug development and access, and have spent countless hours learning from patients, patent offices, community leaders, public health professionals, policymakers, scientists, economists and more. Based on our learnings from those most directly affected by the patent system, we offer ten actions the federal government should take to answer the President’s calls to promote competition and advance equity across government that can transform the patent system in the public’s interest.

1. Amend the PTO’s mission to include equity

Equity doesn’t currently factor into the PTO’s decision making or operations, and that’s no accident. Advancing equity is not part of the agency’s mandate so equity concerns are not considered relevant. The PTO’s mandate relies instead on this theory of change: granting intellectual property rights will spur innovation and economic growth, and people will be better off. This assumption has gone virtually unchallenged in the last 40 years, with no critical look at whether the current model is producing its intended benefits for everyone. And as America grapples with a drug pricing crisis, and vaccine nationalism threatens the global Covid-19 recovery, the consequences of this framework are becoming increasingly clear . If President Biden is truly serious about embedding equity into every agency, we will see the new PTO director amend the agency’s mission accordingly. The agency’s ability (and willingness) to implement the recommendations that follow will depend in large part on equity officially becoming part of its mandate.

2. Collect demographic data

The patent system has a long history of denying Black people opportunities for economic mobility. Even today, research by economist Dr. Lisa Cook indicates that less than one percent of patent holders are Black. In addition to racial inequities, gender inequities are present at the PTO. Women represent only 18 percent of patent holders, and leading economists predict it will still take 118 years to achieve gender parity in the patent system. We know about these disparities from academic studies and not from the PTO, which doesn’t track demographic data. Earlier this year, the bipartisan IDEA Act passed out of the Senate’s Judiciary Committee and companion legislation is pending in the House. This legislation would require the PTO to collect demographic information about applicants. Previously introduced in 2019, the bill’s advancement in this Congress is promising, but doesn’t guarantee passage given the political gridlock plaguing DC. In the meantime — since it can’t fix what it doesn’t measure — the incoming PTO director could voluntarily start collecting this data.

3. Redefine the “customer”

The charter of the PTO’s Public Advisory Committee, which advises the director on patent and operational issues, states that the Committee must “represent the interests of diverse users of the USPTO.” But the PTO defines its users narrowly, as the entities or individuals using the system for patents and trademarks. As a result, the Committee is composed primarily of representatives from corporations. People with non-commercial perspectives—members of historically marginalized communities, public health experts, and patient advocates—who have a tremendous stake in how monopolies operate, for example, don’t traditionally have a voice in decision making. That naturally leads to a system in which the public interest is overshadowed by commercial concerns. The PTO should redefine its customer base to include not just those who are directly applying for patents and trademarks, but also those whose lives stand to be fundamentally altered by these decisions. The deadline recently passed on the PTO’s request for nominations for new Committee members; the time is especially ripe for it to bring in new voices to better represent the public’s perspectives.

4. Raise the bar for what gets patented

Over the last 30 years, more and more patents have been sought and granted for things that aren’t novel inventions. Recent controversies illustrate the point well: these patents are often sought and granted for products derived from ancestral knowledge from countries with predominantly Black and Brown populations—the Colombian sweetener panela, or baby wraps, for example. The PTO should not be granting patents for knowledge appropriated from beyond America’s borders.

The consequences of setting the bar too low have been dire. 13% of Americans report losing a loved one in the last five years due to high drug costs, and people of color are twice as likely to have lost someone. Patent monopolies, which are increasingly being used to block competition, are a root cause of this crisis, and between 2006 and 2016, the number of drug patents doubled. Our research demonstrates that the ten best-selling drugs in America each have on average 131 patent applications, and monopoly protection of up to 38 years. At the same time, nearly 8 out of 10 medicines associated with new drug patents are for existing medicines, like insulin or aspirin, rather than new ones. The longer the monopoly on a single medicine remains, the longer prices stay high or continue to rise.

It’s long past time to raise the bar so that only things that are truly inventive are rewarded with a patent. For example, combining existing drugs or switching dosages should not receive additional patent protection. The administration could recommend that Congress amend the patent law to prevent weak patents from being granted.

5. Change the PTO’s financial incentives

The majority of the PTO’s funding comes from fees paid only if a patent is granted, which means the agency’s revenue is directly linked to the number of patents it grants. This creates a financial incentive to grant as many patents as possible, even if claims to inventiveness are weak.

At least one study found that the PTO grants patents at higher rates when revenue is strained, suggesting that patent decisions are being influenced by factors other than inventiveness. Over the last decade, over 40 percent of patents challenged after having been granted are invalidated either in whole or in part. Research shows that the push to grant ever-more patents puts a strain on patent examiners, who have less and less time to conduct a thorough review (today, the average patent review time is just 19 hours). Over the last 27 years, the PTO has granted as many patents as it had in the previous 155 years. The proliferation of low-quality patents harms people in a range of different ways, including driving up prescription drug costs.

The administration could investigate the link between revenue shortfalls at the PTO and the volume of patents being granted, and evaluate alternative funding streams for the PTO so that the agency’s financial sustainability isn’t tied to the volume of patents that it grants.

6. Modernize laws that are not serving the greater public good

The Bayh-Dole Act, the Hatch-Waxman Act, and the Federal Courts Act were enacted to increase innovation and economic growth. But these laws have also enabled the corporatization of medical research in ways that are deeply harmful to the public. For example, publicly funded research in universities is regularly transferred to pharmaceutical companies with few, if any, conditions to assure access to the resulting medical products. The public ends up paying twice—with tax dollars used for publicly-funded research and development, and through the often exorbitant price paid at the pharmacy. These outdated laws and other legal rulings have resulted in everything from skyrocketing drug costs, to the non-consensual appropriation of tissue from Americans like Henrietta Lacks and John Moore. (Their stories, and the ethical questions they raise, have been explored in-depth by bioethicist Harriet Washington).

The administration should establish a White House task force to assess how societal harm has offset the desired gains from these 1980s-era laws. The task force should include dedicated staff with a mix of patent and equity expertise, including staff from the Federal Trade Commission, the White House Office of Science and Technology Policy, the National Economic Council, and the Council of Economic Advisors. Ultimately, the task force would produce a report that examines the underlying impacts of these laws, and provide recommendations for legislative and executive action that would reform the patent system to enhance benefits to society.

7. Reduce the cost of patent challenges

Challenging a patent can be prohibitively expensive. Filing fees alone cost upward of $41,500 per patent, compared to the significantly lower financial cost of filing patent challenges in Europe and elsewhere.

In a system heavily weighted in favor of commercial actors, legally challenging harmful patent monopolies that may have been incorrectly granted is one of the only avenues for creating equity in the market.

We know this from firsthand experience. Our organization has, in collaboration with patient advocacy groups around the world, successfully mounted legal challenges to unjust patents. These challenges have made the market more competitive, saved health systems billions of dollars, and made medicines more accessible to millions of people across Africa, Asia, and Latin America. Americans deserve the same opportunities to participate in a system that directly affects their health and wellbeing. The PTO should bring its practices in line with other patent offices worldwide and reduce the financial costs associated with challenging a patent.

8. Reverse “discretionary denial” policies

Bipartisan legislation passed in 2011 allowed any person to mount administrative challenges to patents after they were granted. Since then, opponents have repeatedly sought to weaken the authority of the Patent Trial and Appeal Board (PTAB), the body tasked with reviewing patent challenges. For example, the most recent PTO director, Andre Iancu, restricted participation by expanding the circumstances in which the agency could unilaterally decline to review patent challenges. “Discretionary denials,” as they are called, were rare in 2016 but have surged in recent years. Blocking access to one of the agency’s already limited avenues for public participation will lead to more weak patents, undeserved monopoly power for corporations, and less access to medicines and other goods that benefit public wellbeing. The administration should reverse recent policies that effectively shut the door on public participation in the patent system, and accept more challenges to weak patents.

9. Support and invest in increasing access to COVID-19 medical products

Wealthy governments have swallowed up the vast majority of existing COVID-19 vaccines stock, leaving countries with predominantly Black or Brown populations virtually nothing. More than 85 lower-income countries will not have widespread access to coronavirus vaccines until 2023, which increases the risk that new vaccine-resistant variants will emerge. Indonesia and twenty African countries are the latest to feel the crushing blow of the pandemic as they face an overwhelming surge of cases without the resources and tools necessary to avoid preventable hospitalizations and deaths. These inequities are echoes of the early HIV/AIDS epidemic, a moral failure in which medicines existed to save people’s lives but were inaccessible to the vast majority of high-burden countries in the Global South.

The World Trade Organization (WTO) is currently considering a proposal by South Africa and India to waive certain intellectual property provisions related to the “prevention, containment and treatment of COVID-19.” The U.S. has already voiced its support for the waiver, which if adopted would allow drugmakers in other countries to manufacture desperately needed vaccine supply and other medical products. While the waiver negotiations continue to unfold, the U.S. should remain a steadfast champion of global access to COVID-19 medical products—including vaccines—and press further. It should also compel U.S. pharmaceutical companies that used taxpayer funding to develop a vaccine to share that technology and know-how with manufacturers in other countries. These measures would set a precedent for global cooperation that would end the current pandemic sooner, and better prepare us for the next one.

10. Create a new Office of Technology Assessment

New technologies, like artificial intelligence and gene editing, are raising urgent questions about ownership, inventiveness, equity, and ethics. In Congressional testimony, Dr. Shobita Parthasarathy, a professor of public policy at the University of Michigan, outlined the need to incorporate equity considerations earlier and more robustly into the innovation pipeline. President Biden should request sufficient funding for a new Office of Technology Assessment in their annual budget request to Congress (an office of the same name was defunded in 1995). Rampant misinformation on Facebook, disparities in the use of facial recognition software, and other ramifications of emerging science and technology underscore the need for a body dedicated to preventing prospective future harm. This reimagined office would engage experts and members of the public to better understand the potential consequences of new technologies, and advise the administration and Congress on how to mitigate inequitable and other socially damaging outcomes.

Conclusion

As the Administration commits to increasing equity and lowering drug prices, it cannot do so without transforming our nation’s patent system. Centering equity within an agency that has historically lacked it is no small task. It requires a commitment to challenge the status quo in small ways and large, and a shared belief that all our political and economic systems are stronger when they are truly inclusive. These solutions do not stand alone—they must all be integrated into the PTO’s structure and ethos to truly effect meaningful advances. By acting on these recommendations, President Biden can improve the lives of millions of Americans, and show bold global leadership in creating an economy that works for all.

Priti Krishtel and Tahir Amin are the co-founders and co-executive directors of the Initiative for Medicines, Access & Knowledge (I-MAK), a nonprofit organization working to address structural inequities in how medicines are developed and distributed. They are participating in Patent Quality Week, with Engine Advocacy and others across the country, to encourage conversations on quality and balance in the patent system. Learn more here.

Filed Under: equity, incentives, ipr, joe biden, office of technology assessment, ota, patent challenges, patent quality, patents, public good, uspto

'But Without 230 Reform, Websites Have No Incentive To Change!' They Scream Into The Void As Every Large Company Pulls Ads From Facebook

from the oh,-look-at-that dept

One of the most frustrating lines that we hear from people criticizing internet website content moderation is the idea that thanks to Section 230 of the Communications Decency Act, websites have no incentive to do any moderation. This is a myth that I consider to be the flip side of the claims by aggrieved conservatives insisting that Section 230 requires "no bias" in moderation decisions. The "no incentive" people are (often lawyers) complaining about too little moderation. For reasons I cannot comprehend, they seem to think that the only motivation for doing anything is if the law requires you to do it. We've tried to debunk this notion multiple times, and yet it comes up again and again. Just a couple weeks ago in a panel about Section 230, a former top Hollywood lobbyist trotted it out.

I've been thinking about that line a bunch over the past few days as a huge number of large companies began pulling ads from Facebook as part of a "Stop Hate for Profit" campaign put together by a bunch of non-profits.

Over 200 companies have said they've joined the campaign and pulled their Facebook ads, including some big names, like Unilever, Verizon, Hershey, The North Face, Clorox, Starbucks, Reebok, Pfizer, Microsoft, Levi's, HP, Honda, Ford, Coca Cola and many, many more. Now, the cynical take on this is that with the current economic conditions and a global pandemic, many were looking to pull back on advertising anyway, and joining this campaign was a way to do so and get a bit of an earned media boost at the same time.

But many of the companies are putting out statements demanding that Facebook change its practices before they'll bring back ads. Here's an open letter from Levi's:

As we near the U.S. election in November and double down on our own efforts to expand voter education and turnout, we are asking Facebook to commit to decisive change. Specifically, we want to see meaningful progress towards ending the amplification of misinformation and hate speech and better addressing of political advertisements and content that contributes to voter suppression. While we appreciate that Facebook announced some steps in this direction today – it’s simply not enough.

That’s why we are joining the #StopHateForProfit campaign, pausing all paid Facebook and Instagram advertising globally and across all our brands to “hit pause on hate.” We will suspend advertising at least through the end of July. When we re-engage will depend on Facebook’s response.

I'm not convinced this campaign is necessarily a good idea, but at the very least it should put an end to people -- especially prominent experts -- claiming that there is "no incentive" for sites to do a better job with their content moderation practices. There are always non-legal incentives, including keeping users happy -- and also keeping advertisers happy.

Filed Under: advertising, incentives, section 230, stop hate for profit
Companies: facebook

John Bolton Doesn't Need Copyright Protection

from the incentives? dept

Leaving aside the many legal and ethical questions associated with the publication of John Bolton's The Room Where it Happened, there's one question nobody (to my knowledge) has asked: Why should John Bolton get copyright protection?

As a matter of law, this is what lawyers call a "stupid question." Under virtually every copyright regime in human history, Bolton's book would be eligible for copyright. But when asked concerning the economics of the publishing industry and the public's right to know what happened in the room where it happened, the question becomes far more interesting.

The Room Where it Happened will be a financial success. The book is number one on Amazon Kindle–with 200,000 copies already shipped to booksellers–and Bolton has secured a slew of top-dollar speaking engagements.

The army of eager readers pre-ordering the book and all those who will buy it as soon as it is released are evidence of a lead-time advantage that exists independent of exclusivity and isn't unique to this situation.

A few weeks in theaters is enough to make back the production cost (and then some) of a blockbuster movie. In the complete absence of copyright, some people would probably wait to grab a free copy online; there are already pirated copies of The Room Where it Happened floating around the internet. But every pre-order of a book or game, and every packed theater at a midnight premier, is an opportunity to charge a premium that doesn't rely on copyright.

An obvious response to this is that, while there will always be a population willing to pay to receive content as soon as possible, among those first in line are those willing to wait a little while for it to appear online for free–especially if there were no legal risks for copying. This is probably true on the margins. Still, it doesn't imply that nobody (or next to nobody) would purchase this book, and we have a few natural experiments to prove it.

Thanks to the government edicts doctrine, all works created by government officials in the course of their official duties are in the public domain. Court decisions, legislation, and reports of all kinds are all posted online for free. If we apply the logic that in the absence of copyright (almost) nobody would purchase what they can get online for free, then the sales of high-profile government reports would be negligible.

This couldn't be further from the truth. The Starr Report, the first "blockbuster" government publication after the dawn of the internet, sold millions of paperback copies shortly after its release. This is back in the days of laserjet and low-resolution computer monitors, so it's certainly not a one-to-one comparison. However, we still see sales of these reports even as reading on a computer became more tolerable. Released in July 2004, the 9/11 Commission Report sold over a million copies by November of that year. It vastly outperformed The Financial Crisis Inquiry Report, which still sold all 25,000 copies from its initial printing in a month. The Mueller Report was also a minor bestseller.

For all intents and purposes, copyright law does't exist for these works. I can't say whether or not the government made its money back from these sales (the answer is likely no due to the intensive fact-finding involved and sales by third parties), and these examples are far from sufficient to refute the case for copyright as a whole. Even so, these natural experiments thoroughly disprove the notion that free access necessarily makes for a commercial flop.

As a memoir of sorts, The Room Where It Happened doesn't have the overhead of a government inquiry. Time and effort surely went into the writing and editing of the book, but the source material is Bolton's time in the White House. This leads to the second reason The Room Where it Happened should be in the public domain: the contents should have been public record.

Ten thousand years ago, in January 2020, there was the possibility that John Bolton would testify during the impeachment trial of Donald Trump. This didn't happen. Had it happened, it is highly likely that a significant amount of the information in The Room Where it Happened would have been made available to the public.

Would this have changed the outcome of the impeachment trial? Probably not. Had he testified, would everything in The Room Where it Happened come out in Bolton's testimony? Again, probably not. But John Bolton's words would have been on the record and not behind a paywall.

In the context of John Bolton, this may not seem like a serious issue. Aside from the pirated copies, reviews of the book have already revealed some truly outlandish conduct by the Trump Administration–and the President in particular. But it is worth knowing what happened in his words specifically for the same reason direct testimony is more valuable than an accurate second-hand account.

Direct quotations, even lengthy ones, would qualify as fair use depending on the context, and I don't think there's a serious risk of this book falling down the same copyright memory hole that books from the 20th century have. Still, unrestricted access for the American public can only be guaranteed by the public domain.

There is obviously a middle ground between the public domain and our current copyright laws. It is also safe to say that, whatever his motives, John Bolton has done some kind of service by writing The Room Where it Happened. Regardless, it's cases like these that create the opportunity to critically examine both the economic logic of copyright law and how to balance it with access to information in a democracy.

Filed Under: copyright, incentives, john bolton, public domain, the room where it happened

67 Years Ago Today: Jonas Salk Announced The Polio Vaccine... And Did NOT Patent It

from the this-day-in-history dept

It seems worth noting a historical milestone today. 67 years ago today, March 26, 1953, Dr. Jonas Salk announced the vaccine for polio, and saved millions of lives. And this is notable given the current COVID-19 pandemic we're all living with. However, at a time when we're having to be vigilant for giant pharmaceutical companies sneakily trying to game the system to get extra exclusivity, and patent maximalists pushing for extended patent terms as an "incentive" to come up with a vaccine, it's worth noting the simple fact that he did not patent the vaccine. Indeed, in a TV interview with Edward Murrow, Salk famously said "could you patent the sun?"

Right at the beginning of that video you can see the famous exchange:

Murrow: Who owns the patent on this vaccine?

Salk (shocked face): Well... the people I would say. There is no patent... Could you patent the sun?

A few years back, there was an effort by a bunch of patent maximalists to try to recontextualize and minimize that statement. They made up things, claiming that it wasn't patentable in the first place (wrong), that there was too much prior art (nope), that because so many people had donated money to the research there was a general sense that "the public had already paid for the polio vaccine" and Salk patenting it "would have represented double charging." Of course, this is all ludicrous, when you recognize that most drugs today, including basically every current effort to deal with COVID-19, are also mainly paid for by taxpayer funds in the form of NIH grants and the like.

The key point, however, is that there are many different incentives -- and believing that locking up exclusivity in order to jack up the price of a drug or vaccine to obtain monopoly rents, is a silly idea that has no basis in real economics. Jonas Salk proved that in the 1950s and saved millions and eradicated polio. Anyone focusing on patents or other exclusivities in the middle of a pandemic like this is displaying wanton greed and a real misunderstanding of how incentive structures actually work. Today, Jonas Salk is correctly remembered as a hero. Any company looking to block out competition and charge monopoly rents for a treatment of vaccine to today's pandemic is rightly seen as a greedy profiteer.

The incentive structure for saving the world need not be that individuals need to pay tons of money to get it. Patents on drugs rarely make sense in even normal times. At this moment, they make no sense.

Filed Under: covid-19, drug discovery, incentives, jonas salk, patents, polio, vaccines

Everyone's Got A Pet Project: Patent Maximalist Says We Need Longer Patents To Incentivize Coronavirus Vaccines

from the oh-shut-the-fuck-up dept

Adam Mossoff is one of the most vocal IP maximalist law professors around. He's never seemed to have met a form of artificial monopoly that he didn't want to expand. His latest is that he's claiming, laughably, that we should be extending patent terms in order to incentivize the creation of coronavirus vaccines. His argument is based on a misleading complaint that has been raised by plenty of pharmaceutical companies: they need to file their patent applications at the point of discovery, but they can't market a drug until it receives FDA approval, and that can take years, which cuts into the years over which they hold a monopoly and can extract insane monopoly rents.

Mossoff says that now is the time to revisit that and to roll back the law that made it so the clock started so early, and to enable patent extensions to incentivize drug makers to create a coronavirus vaccine.

Congress can easily fix this mistake in innovation policy. It can enact legislation that reverses the changes made in 1993 and increases the patent term extensions. Instead of attacking patents, Congress should pass legislation providing more protections. It is an easy fix that will save countless more lives from cancer, diabetes, and viruses like the coronavirus.

This is utter nonsense on so many different levels. It assumes -- incorrectly, though a core to all of Mossoff's thinking -- that the ridiculous monopoly profits are the only thing that incentivize creation. Given that tons of companies are already researching coronavirus cures, knowing full well that the reason to do so is to save millions of lives and that governments will easily pay handsomely for such a vaccine, it's difficult to say with a straight face that these companies need more monopoly rents to work on these kinds of solutions.

Even more to the point, there's an obvious fundamental flaw in Mossoff's reasoning. A patent only goes to those who get there first. Every one else trying to create the same drug still has the same capital expenditure upfront to try to develop the drugs or technologies -- but can get blocked by whoever gets to the PTO first. If we take Mossoff's simplistic model that only if a company is guaranteed monopoly rents will they invest in the first place, his own model breaks down, because so many players will invest heavily and get nothing in return, because they were a day or week late.

It seems that a much better model is the way most of the economy works: if you build a good product people and companies and governments pay you for the product, and you don't need the government to step in and say no one can compete with you for two decades (or more, if Mossoff got his way).

Especially at a time when we see patent-related price gauging around COVID-19, all the evidence suggests we should be moving in the other direction -- opening up the ability for more companies to innovate and compete in a free market. Indeed, if Mossoff actually wanted real incentives that also compensates drug developers, you'd think he'd be much more supportive of the innovation prize approach, that basically gives a ton of cash over to those who develop breakthrough drugs in a prize format, but then still allow the drugs to be offered to those who need them at a reasonable price. Then you actually have people who can afford the drugs to stay healthy, rather than just acting as a siphon to drain people's bank accounts to pay off pharma companies who bought most of the research off of smaller labs who did the actual work with government funding in the first place.

Filed Under: adam mossoff, coronavirus, economics, incentives, patent terms, patents, vaccines

EU Patent Office Rejects Two Patent Applications In Which An AI Was Designated As The Inventor

from the watch-this-space dept

We've written a bunch about why AI generated artwork should not (and need not) have any copyright at all. The law says that copyright only applies to human creators. But what about patents? There has been a big debate about this in the patent space over the last year, mainly lead by AI developers who want to be able to secure patents on AI generated ideas. The patent offices in the EU and the US have been exploring the issue, and asking for feedback, while they plot out a strategy, but some AI folks decided to force the matter sooner. Over the summer they announced that they had filed for two patents in the EU for inventions that they claim were "invented" by an AI named DABUS without the assistance of a human inventor.

And now, the EU Patent Office has rejected both patents, since they don't have a human inventor.

The EPO has refused two European patent applications in which a machine was designated as inventor. Both patent applications indicate “DABUS” as inventor, which is described as “a type of connectionist artificial intelligence”. The applicant stated that they acquired the right to the European patent from the inventor by being its successor in title.

After hearing the arguments of the applicant in non-public oral proceedings on 25 November the EPO refused EP 18 275 163 and EP 18 275 174 on the grounds that they do not meet the requirement of the EPC that an inventor designated in the application has to be a human being, not a machine. A reasoned decision may be expected in January 2020.

Frankly, this is the right decision and its one that I hope patent offices around the globe recognize and continue to keep this line in place. I fear that this will actually kick off the process that comes to the opposite conclusion, and that patent offices will change the rules to allow for AI-generated patents.

The problem, yet again, is in people's misguided belief that everything must be owned by someone, and that somehow without a patent it is impossible to successfully commercialize or market a product. There is tremendous evidence to the contrary (including just by looking at products after their patents run out -- which is often a time when more innovation occurs, since there's greater competition driving improvements). But, instead, you hear nonsense like the following from Prof. Ryan Abbott, who helped file the two now rejected patents, arguing that without patents, somehow these inventions might not come to be:

Abbott and his team believe that powerful AI systems could eventually find cures for cancer or find workable solutions for reversing climate change. “If outdated IP laws around the world don’t respond quickly to the rise of the inventive machine, the lack of incentive for AI developers could stand in the way of a new era of spectacular human endeavor,” Abbott said.

But why? AI doesn't need the monopoly control as incentive to create an invention. That's not what motivates the AI. What's wrong with just letting the AI come up with those cures for cancer and workable solutions for reversing climate change and just giving them to the world to make the world a better place?

Filed Under: ai, dabus, epo, eu, humans, incentives, ownership, patents, ryan abbott

Congress Now Creating A Moral Panic Around Deepfakes In Order To Change CDA 230

from the oh-come-on dept

Everyone's got it out for Section 230 of the Communications Decency Act these days. And pretty much any excuse will do. The latest is that last week, Rep. Adam Schiff held a hearing on "deep fakes" with a part of the focus being on why we should "amend" (read: rip to shreds) Section 230 of the Communications Decency Act to "deal with" deep fakes. You can watch the whole hearing here, if you're into that kind of punishment:

One of the speakers was law professor Danielle Citron, who has been a long time supporter of amending CDA 230 (though, at the very least, has been a lot more careful and thoughtful about her advocacy on that then many others who speak out against 230). And she recommended changing CDA 230 to deal with deep fakes by requiring platforms take responsibility with "reasonable" policies:

Maryland Carey School of Law professor Danielle Keats Citron responded suggesting that Congress force platforms to judiciously moderate content in any changes to 230 in order to receive those immunities. “Federal immunity should be amended to condition the immunity on reasonable moderation practices rather than the free pass that exists today,” Citron said. “The current interpretation of Section 230 leaves platforms with no incentive to address destructive deepfake content.”

I have a lot of different concerns about this. First off, while everyone is out there fear mongering about the harm that deep fakes could do, it's not yet clear that the public can't figure out ways to adapt to this. Yes, you can paint lots of stories about how a deepfake could impact things, and I do think there's value in thinking through how that may play out in various situations (such as elections), to assume that deepfakes will absolutely fool people and therefore we need to paternalistically "protect" the public from possibly being fooled, seems a bit premature. That could change over time. But we haven't yet seen any evidence of any significant long term effect from deepfakes, so maybe we shouldn't be changing a fundamental internet law without actual evidence of the need.

Second, defining "reasonable moderation practices" in law seems like a very, very dangerous idea. "Reasonable" to whom? And how? And how can Congress demand reasonable rules for moderating content without violating the 1st Amendment? I don't see how any proposed solution could possibly survive constitutional scrutiny.

Finally, and most importantly, Citron is just wrong to claim that the current structure "leaves platforms with no incentive to address destructive deepfake content." As I said, I find Citron to be more thoughtful and reasonable than many critics of Section 230, but this statement is just bonkers. It's clearly false, given that YouTube has taken down deepfakes and Facebook has pulled them from algorithmic promotion and put warning flags on them. It certainly looks like the current system has provided at least some incentive for those platforms to "address destructive deepfake content." You can disagree with how these platforms have chosen to do things. Or you can claim that there need to be different incentives, but to say there are no incentives is simply laughable. There are plenty of incentives: there is public pressure (which has been fairly effective). There is the desire of the platforms not to piss off their users. There is the desire of the platforms not to continue to rain down angry rants from (and future regulations) from Congress.

And, importantly, section (c)(2) of CDA 230 is there to encourage this kind of experimentation by the platforms. They are given the benefit of not facing liability for moderation choices they make, which is actually a very strong incentive for those platforms to experiment and figure out what works best for them and their particular community.

Any effort to change the law to demand "reasonable moderation practices" is going to come up against difficult situations and create something of a mess. If we pass a law that forces Facebook to remove deepfakes, does that mean Facebook/Twitter and others would have to remove the various examples of deepfakes that are more comedic than election-impacting? For example, you may have recently seen a viral deepfake of Bill Hader on Conan O'Brien doing his Arnold Schwarzenegger impression, in which he subtly morphs into Swarzenegger. Would a "reasonable" moderation policy forbid such a thing:

Also, different kinds of sites have wholly different moderation approaches. How do you write a rule that applies equally to Facebook, Twitter, YouTube... and Wikipedia, Reddit and Dropbox. You can argue that the first three are similar enough, but the latter three work in wholly different ways. Crafting a single solution that works for all is asking for trouble -- or will wipe away significant concepts on how to run online communities.

I can completely empathize with the worries about deep fakes and what they could mean long term. But let's not use this moral panic and overreaction without evidence of harm to completely change the internet -- especially with silly claims falsely stating that there are no incentives for platforms to handle the problematic side of this technology already.

Filed Under: adam schiff, content moderation, content removals, danielle citron, deep fakes, incentives, reasonable policies
Companies: facebook, youtube

MPAA: To Save Free Speech, We Must Broadly Censor Free Speech

from the say-again? dept

Earlier this year, we wrote about a thought-provoking article by Zeynep Tufecki discussing how some people were deliberately trying to use the open "marketplace of ideas" to effectively attempt to poison the marketplace of ideas. Also mentioned in that article was an excellent Yale Journal Article called Real Talk About Fake News by Nabiha Syed, which raised similar issues, and wondered if we needed a new framework for thinking about free speech online. We later had Syed on our podcast to discuss this further. Both Tufecki and Syed were raising important, thought-provoking issues that were not at all like the usual attacks on free speech -- because neither was an attack on free speech. Instead, they were attempting to protect free speech by pointing out that the way we often frame these discussions may not be the most effective way of thinking about these issues -- and that might actually lead to the silencing of voices.

This has certainly spurred many more thoughtful discussions on these topics. But... it won't surprise you that some are now looking to exploit this open discussion in their own way. The MPAA recently filed some comments with the NTIA, and what's striking about them, is how they appear to be co-opting the language of Tufecki to attack free speech online, and push for legal changes that would lead to massive censorship. But, in doing so, they claim these changes are necessary to "protect" free speech. The MPAA's VP Neil Fried also put out a somewhat snarky blog post about the filing, in which the MPAA insists that CDA 230 and DMCA 512 must be changed because "the status quo does not seem to be working."

Is that so? CDA 230 became law in 1996. DMCA in 1998. Let's take a look at how movie box office revenue has been over the years since (2018 numbers are projected based on tickets so far):

I don't know, Neil, but it sure looks like Hollywood is doing just fine under these conditions. But, the MPAA has basically invested so much of its identity into the idea that infringement is an existential threat, that it has to keep going with it. Remember, this is the same organization that insisted the VCR was going to be "the Boston Strangler" to the movie industry -- and that was said in Congressional testimony just four years before home video revenue surpassed box office revenue. So, the MPAA does not exactly have a credible track record on claiming that the threat of piracy is a real problem for the industry. But, it just can't let things go.

So now it's trying again with this comment to NTIA. And I find it notable that it appears to be trying to co-opt the framing that Tufecki used in order to argue for a regime that would stamp out free speech online:

Responsible businesses refusing to facilitate such activity are not squelching speech. They are not stifling speakers wishing to communicate ideas, but thwarting culprits engaged in malfeasance. In fact, curbing such illicit activity promotes free expression by creating a safer, virtual forum where individuals feel comfortable to engage and communicate. In this sense, it is leaving lawlessness and bullying unchecked that is chilling free speech.

But, of course, a large part of the problem is that the MPAA's entire framing here is simply incorrect. It claims that platforms have no incentive to clean themselves up -- which is laughable when you consider just how far various internet companies have bent over backwards to try to appease everyone complaining about the crap on their platforms.

Many of the platforms are not living up to that bargain, shielded behind the broadly interpreted limits on liability that ensure few if any consequences, and failing to apply the same innovation to address internet harms that they do to other areas of their business.

This statement has zero basis in reality. Of course all of the major internet platforms regularly moderate content, and these days are under tremendous public pressure from basically all sides, to "do something" about content deemed dangerous. In fact, the worries about over-censorship from this kind of pressure and motivation is already well documented. Hilariously, the MPAA pretends that the platforms don't have much incentive to do anything -- which ignores all of the pressure from their own users, the media, politicians and more.

Bizarrely, later in the filing, the MPAA admits that platforms are, in fact, moderating content heavily (something that it spends pages insisting isn't happening). Yet, when it does so, the reasoning is equally perplexing:

The rebuttal is often that there is a risk that efforts to combat illicit conduct online will be overbroad, and inadvertently chill speech. But the platforms appear increasingly willing to curb things like hate speech. As odious as such speech is, it is quintessentially expressive. Efforts to combat it are fraught with challenges of under- and over-inclusiveness. Such activity is more susceptible to a chilling speech argument than attempts to curtail clearly illicit conduct, which present a brighter line.

So... let's get this straight. The platforms have no incentive to get rid of illegal content on their platforms -- even though all of them do so. And, to prove that there's no problem with overbroad censorship, we'll point to the fact that they do the kind of moderation we previously said they don't... and then admit that that moderation itself is chilling speech. Incredible.

The MPAA seems so wedded to its desire to take away the DMCA safe harbor and the CDA immunity provisions that it really doesn't care that no mainstream platform is eagerly courting "illegal" content. But, in order to undermine the open internet, and push for one in which all things must be licensed, it has to keep up the charade that platforms encourage illegal behavior and refuse to deal with it. And it's adopting the language of those who were trying to have a more serious conversation about dealing with bad actors online. It's the ultimate troll move.

Filed Under: bad behavior, cda 230, censorship, dmca, dmca 512, free speech, incentives, intermediary liability, marketplace of ideas
Companies: mpaa