Senator Hawley's Section 230 Reform Even Dumber Than We Expected; Would Launch A Ton Of Vexatious Lawsuits

from the dude,-seriously? dept

So there were rumors about Senator Hawley's bill to reform Section 230 earlier this week, saying that it would remove 230 protections if you used targeted ads. Today, Hawley released the actual plan, which is very different, but even dumber. It would certainly turn the GOP from the party that wanted to push for tort reform and limit frivolous and vexatious lawsuits into the party that encouraged an avalanche of wasteful litigation.

The shortest version of the bill's likely impact is that it would create an army of "content moderation troll" lawyers, because you could sue any platform that you felt removed your content unfairly and get $5,000 plus attorney's fees. With a bit more detail, the bill requires that a platform have clear terms of service and any moderation would have to be tied back to those terms -- which pretty much shows that whoever wrote this pile of shit has no idea how content moderation works, and the fact that you need to keep adjusting the actual content moderation practices, because dishonest people who are trying to abuse your system are always trying to game things to stay "technically" within the "terms" while still wreaking havoc on your platform.

The bill then says that if a platform makes any design or operation decision that is not in "good faith", anyone can sue them for $5k and attorneys' fees. Note that this seems to go beyond just moderation decisions. It includes a platform making design decisions that you dislike. That's... crazy. There's also the question of what is actually meant by "good faith" and all the 1st Amendment issues that raises, because determining what is and is not "good faith" is a straight up editorial decision, and the whole point of the 1st Amendment is that the courts can't jump in to second guess editorial decisions.

To be clear, this law's attempt to expand "good faith" seems to be purposely made in bad faith to simply overwhelm internet platforms with tons of lawsuits.

This bill flips the entire purpose of Section 230. As Jess Miers said, this bill seems to take the immunity from civil suits in the law and turns it into a private right of action for tons of frivolous and vexatious lawsuits.

It is not a serious attempt at reform. It's an unconstitutional pile of crap that seems to serve no other purpose than to allow whiny aggrieved grifters to shake down every platform for their moderation and design choices.

Filed Under: frivolous lawsuits, good faith, intermediary liability, josh hawley, moderation, section 230, trial lawyers

As Expected: Trial Lawyers Made A Huge Miscalculation In Killing Recent Patent Reform

from the have-fun-guys dept

Back in May, we wrote about how, despite pretty much everyone agreeing on a (decent, if not amazing) patent reform bill in the Senate, the whole thing got shot down at the last minute. That was when the trial lawyers called Senator Harry Reid, asking him to kill the whole thing, which he did by telling Senator Patrick Leahy that he wouldn't allow the bill to go to the floor for a vote. This came after months of detailed negotiations, getting nearly everyone into agreement on the bill, which would have made life at least somewhat more difficult for patent trolls. About a week after that, we pointed out that it seemed likely that the patent trolls had miscalculated badly, because it was widely expected that the Republicans would take control of the Senate in the fall (as they did), and they were more gungho on real patent reform and (obviously) not concerned with what trial lawyers think (mocking trial lawyers being a hobby of Republican politicians).

And, indeed, that prediction appears to have been quite accurate. Senator Orrin Hatch -- who is seen as something of a copyright maximalist though apparently doesn't feel that way about patents -- went on the attack against patent trolls in a floor speech. Hatch doesn't mince words and flat out calls out the trial lawyers for killing the recent patent reform attempt. Furthermore, as Vox reports, other Republicans in the Senate appear eager to take on patent trolls, going even further than the legislation that was almost agreed to earlier this year. In fact, Hatch made it clear that he wants stronger fee-shifting in patent reform than what was in the last bill -- and that was the issue that most worried the trial lawyers. It was pretty obvious this was going to happen back in May. It's fairly incredible the trial lawyers (and Harry Reid) didn't recognize this at the time.

Hatch's speech touched on a few other issues -- some good, some bad. He's pushing new federalized trade secret laws. This is a really bad idea, which we'll be discussing in more detail later. However, he also supports ECPA reform -- something that we've supported for years and has never gone anywhere in Congress. He brought up some other important issues, including immigration for high skilled workers. So the speech was definitely a mixed bag, but it had a lot of good points (unless you're a patent troll or a trial lawyer).

Filed Under: orrin hatch, patent reform, patent trolls, patents, trial lawyers

Why The Trial Lawyers May Have Miscalculated In Killing Patent Reform, And How It May Come Back To Bite Them

from the better-patent-reform-next-year dept

As we noted last week, it was really the trial lawyers (with some help from pharma) that killed patent reform. While patent trolling operations and some big legacy companies with giant patent portfolios had been fighting against patent reform all along, they weren't responsible for killing it outright. In fact, in talking to many people involved, the same story comes up again and again: pretty much everyone was negotiating on a deal -- and, at the last minute, the trial lawyers called Harry Reid, who told Leahy to kill the bill. Joe Mullin quotes a tech industry lobbyist who notes that "I feel like a mouse who never knew he was a mouse," and that despite all the negotiating, the trial lawyers just put an end to it:

"We felt really good the last couple of days," said the tech lobbyist. "It was a good deal—one we could live with. Then the trial lawyers and pharma went to Senator Reid late this morning and said that's it. Enough with the children playing in the playground—go kill it."

Some have asked why trial lawyers (rather than patent lawyers) were so against it, and the key thing is that the trial lawyers don't want anything to do with fee shifting. They fear, greatly, that if fee shifting is shown to be effective in patent cases, it will then make it easier to spread to other types of cases. This isn't a huge surprise. Nearly a year ago, a high ranking Democratic Congressional staffer told me flat out that "fee shifting has to be off the table" because "the trial lawyers will never allow it." I was actually surprised that it stayed in the bill as long as it did.

But here's the thing: having the trial lawyers kill the bill outright may be incredibly shortsighted. That's because this bill was already pretty weak overall. All that "bipartisan negotiating" and lobbying pressure from patent trolling operations (and big tech firms who didn't want to lose the ability to exploit giant portfolios of bad patents) had basically weakened this bill drastically already. Even the fee shifting was pretty limited and unlikely to have a huge impact.

But the problem of patent trolls still remains.

And here's the big thing. The Republicans are very much in favor of patent reform, and many prognosticators expect the Republicans to take control of the Senate in this year's elections. As lawyer Matt Johnson points out, with the Republicans in control over both houses, much stronger patent reform might go through in the next Congress, and there won't be much the trial lawyers will be able to do about it. Republicans aren't known for bending to the whims of trial lawyers.

In the interest of making a deal with Democrats this year, Cornyn offered major concessions on fee-shifting, heightened pleading, and discovery abuse during his negotiations with Sen. Chuck Schumer (D-NY). Those concessions won’t necessarily be on the table next year in a GOP-controlled Senate. And House Judiciary Chairman Bob Goodlatte may similarly be unmotivated to make concessions with Democrats in his chamber. Moreover, the trial bar certainly can’t count on the President to be a backstop. President Obama has championed many of the litigation reforms they oppose, including loser-pays and heightened pleading standards.

Reform opponents made the calculation that they’ll take their chances in 2015 rather than swallow a bipartisan compromise this year.

As he says, "this year’s Schumer-Cornyn deal is probably as good as it gets" for those looking to limit patent reform. Next year, the trial lawyers may be able to call Harry Reid, but it might not matter at all.

Filed Under: congress, harry reid, patent reform, patent trolls, patents, patrick leahy, trial lawyers

Harry Reid Bows Down To Trial Lawyers And Big Pharma In Killing Patent Reform

from the same-old-story dept

Tuesday evening, I had a discussion with a friend who was working on patent reform efforts. I said that the reform effort was dead, but my friend insisted that it was being negotiated as we spoke, and that the folks working on it wouldn't be doing so if it died. But, of course, by Wednesday morning it really was dead, and basically everyone who had been working hard on it pointed their finger at one person: Harry Reid. Within minutes of Leahy announcing that patent reform was dead, a whole bunch of people reached out to all say it was Reid's fault. And, that story got out fast. Basically everyone is saying that Harry Reid called Leahy and told him to kill the bill after trial lawyers and the pharmaceutical industry complained to Reid. Reid, fearing a loss in donations from those groups that often support Democrats in an election year, killed the bill.

Most of the reports said that Reid told Leahy he wouldn't allow the bill to come to the floor, but we heard a slightly different story: Reid didn't want it to come to the floor, and if it passed out of the Senate Judiciary with strong bipartisan support, he would be forced to bring it to the floor. That's why it was killed before it even had the chance, and Leahy had to pull it off the agenda without even allowing the Judiciary Committee to vote on it.

This is politics as usual. The same groups killed patent reform efforts in 2004, and basically every two years after that until they got a watered down bill in 2011. Unfortunately, if the same pattern holds, we may not see patent reform until 2021, by which time it too will likely be useless. And all the while actual innovation and our economy suffers.

Filed Under: harry reid, leadership, patent reform, patent trolls, patents, patrick leahy, pharmaceuticals, senate, trial lawyers