States Attorneys General Want Special Exception To Blame Sites For Actions Of Users

from the that-would-be-a-very-bad-idea dept

One of the most important laws that has enabled innovation on the internet to thrive is Section 230 of the CDA. We've written about it many times. What it says is fairly basic: a website cannot be held liable for actions by its users. There are a few exceptions and caveats, but that's the basic premise. And it makes perfect common sense -- so much so that it's almost amazing that you need a law to say it. But, we do, because when grandstanding and moral panics come around, politicians and people with pitchforks love to blame third parties and intermediaries as if they're the problem. And, having intermediaries be liable for how users are using their services creates all sorts of problems. It makes it that much more difficult for companies to innovate, because they're taking on tremendous potential liability if anyone misuses their service. So, they then either don't develop an open service, or they have to invest heavily in services to filter/monitor/block any potential misdeeds (which also will lead to blocking legitimate uses as well).

Of course, the grandstanding politicians who jump on moral panics absolutely hate Section 230. They always have. As we've discussed in detail over the years, the type of politician that focuses on grandstanding on moral panics the most is always a state attorney general. They make grand public pronouncements against companies they don't like, often with absolutely no legal basis, and then browbeat them into a "settlement" just so the companies can stop having to deal with the AGs lying about them in public all the time. Chris Tolles, the CEO of Topix, gave a great detailed explanation of how various AGs ganged up on him, basically issuing a press release accusing him of doing horrible things, totally misrepresenting what the company did, but without naming a single law they violated (because they hadn't). In response, Tolles did what most people would think you should do in that case: explain to the AGs what Topix actually did, and why it was perfectly reasonable. In response, the AGs (more of them this time) issued another press release, taking direct statements that Tolles had told them further out of context, and making the company sound even worse. Eventually he "settled" because fighting them was costly.

We've seen this over and over and over again. AGs have attacked Twitter and Craigslist and Facebook and Comcast and Google and over and over again.

Of course, the lack of a legal basis often stymies these attempts, and a big thing that gets in the way: Section 230. So it should come as little surprise, as noted by Eric Goldman today, that the states Attorneys General are planning to ask Congress for an exemption to Section 230 when (you guessed it) states AGs bring a case. He heard it today while on a panel at the annual meeting of the National Association of Attorneys General, where he was on a panel about Section 230. During the discussion, Goldman says that an unnamed Attorney General (he didn't catch which one) made a comment about the plan.

Section 230 has been under attack for some time, but going to Congress to try to make that kind of exception would be a huge disaster. It would allow these AGs to continue with bogus grandstanding campaigns, but actually with the ability to create massive problems for companies actually trying to offer usable, open platforms for users. Nearly every company would need to proactively filter any kind of user generated content, and would be at risk of tremendous legal liability if "bad stuff" got through. This would be a huge attack on internet innovation, all so some ambitious politicians can try to make more headlines by attacking tech companies. The state Attorney General position is considered the classic "stepping stone" position, which many politicians use to run for Governor or Senator in their state, and one way to help with the campaign is to get lots of headlines around "protecting the children" and whatnot. So, basically, these politicians would be breaking one of the key elements that has allowed internet innovation to thrive, to help them get a few more headlines in their quest for higher office.

Filed Under: attorneys general, cda, innovation, secondary liability, section 230, state attorneys general, third party innovation

Awesome Stuff: Have A Cool Drink This Weekend

from the you-deserve-one dept

For this week's awesome stuff post, we're going to suggest it's about time you kicked back and had a cool drink. You deserve it. Thankfully, there are a bunch of crowdfunding projects to help you make that cool drink a reality.

• First up, The Ice Baller, for those of you who think your ice cubes are too cloudy, too small, and too... cubed. It's a device designed to make larger, clear, round ice balls. Pretty self explanatory. Apparently, a lot of people want big clear ice balls, because this one shot past its $20,000 goal pretty quickly and there's still over a month left. Personally, it seems fairly pricey to pay $70 (well, $55 if you got in early) to make ice balls, but what do I know?
• Ice is so last century. How about some ChillBottles -- little stainless steel refreezable bottle-shaped devices to cool down your drinks. They even come in a small "six pack" stainless steel case that will keep the bottles cool outside of the freezer. This reminds me of another Kickstarter project -- called pucs which closed a couple weeks ago. That one was much more popular, but the ChillBottles are still available (and cheaper). This one only has a couple hours left, so if you want them, don't waste much time. Of course, it might seem a bit odd to put a "beer bottle" shaped frozen bit of stainless steel into a non-beer drink, but this isn't about thinking too hard. It's about getting drinks cooler.
• Okay, maybe you shouldn't just be thinking about what to put inside your drink to cool it down. Some designers have come up with a funky looking device called TurboCool to (they claim) quickly cool down any canned drink. I have to admit that I'm not sure I understand how or why this works, but it's basically a cannister in which you put water & ice, and then your can, and you pump the top so the can spins. Sort of the same functionality as a salad spinner. I can see how this would get the drink marginally cooler faster, but still seems like it would take a while to get a drink really cool. These guys are pretty ambitious -- seeking over $150,000 for a device that cools a single can marginally faster than a bucket of ice, but they still have over a month.
• Finally, what good is a cool drink if the drink isn't very good. Rejigger seems like an easier way of making mixed drinks without having to carefully measure each component. Basically, it's a cup with three separate compartments, sized to the usual different ratio of "parts" in various classic drinks. Just pour in the right liquids to the right ratio slots, and you've got a quick mixed drink. This one is also super ambitious, seeking $75,000, and it's got a long way to go to reach that goal. However, they still have nearly a month to go.

There you go. Kick back, relax, have a cool drink and enjoy your weekend.

Filed Under: awesome stuff, crowdfunding, drinks, ice

Awesome Stuff: Maps Aren't Just An App On Your Phone

from the where-to-go? dept

I don't know why I've been thinking about maps lately -- perhaps it's because I've been traveling, and as this is posted, I'll actually be in an airplane flying home. I've always been a fan of maps -- all kinds of maps -- and can spend an inordinate amount of time looking at various maps. So it's interesting to see a few map or map-related products all show up at the same time on Kickstarter. These days, "maps" for many mean the app they can call up on their smartphone -- but people are doing some fun things with the more old-fashioned kind of maps as well:

• We'll start with a cool idea: making Risk-like boards that highlight certain regions. So, rather than the "world" map you see in regular Risk, you can play a Risk-like game in your home city. Of course, as it is they have a limited number of places right now -- but they include San Francisco, New York and a variety of other places as well. Of course, there's an IP angle here too. The folks who made this don't own the rights to Risk. They're trying to deal with this by (1) being clear that they're obviously building off of Risk (not trying to hide it) and (2) making the game unplayable unless you have an official copy to go along with it and (I think...) use the pieces from the official game. With this project getting greater attention, hopefully Hasbro realizes that it actually helps their brand, rather than hurts it. ,
• Next up, we've got Bucketlistmap: Putting the Awesome Back in Maps -- which clearly fits in with our theme here. If you like old maps and their great design, you'll probably really like this one. These guys are trying to take the beautiful design and style of really old maps and update them for a modern era. They've already done really cool world maps for skiing, surfing and football (soccer for us uncultured Americans) and now they want to do a "bucketlistmap," which will be the same sort of thing, but highlighting "the world's most awesome sights, smells, sounds and eats." Definitely click through on this one to check out the pictures. They've already met their goals on this one though, there's still a single $10,000 option available, in which they'll throw a dart at a map (they don't say if it will be one of their own) and send you to wherever the dart lands on an all-expenses paid trip. I would imagine that might be a bit tricky if it lands in the middle of the ocean somewhere -- or if it ends up in a place where "all expenses" exceed $10,000. Still, I think this one is more for the amusement factor anyway.
• Finally, we've got some guys trying to put together Grant Rising: First in a New Series of Civil War Map Books. It's an "atlas" of maps that try to tell the story of Civil War general and one-time US President Ulysses S. Grant. It's an interesting idea. I'd never thought of telling someone's life story through maps. This one hasn't yet matched its goal, and is still below 50%. I'm guessing that the topic is so specific that it might have a limited audience. You'd need to be interested both in maps and the life of Ulysses S. Grant, and I'm not sure how big the overlapping populations really are. Still, I think it's neat to think about someone's life in the form of a collection of maps.

That's it for this week. Go check out some maps.

Filed Under: awesome stuff, maps

Awesome Stuff: Print Stuff, Make Stuff

from the make-stuff-in-your-home dept

One of the biggest and most important trends right now is the increasing ability for people to make physical stuff that used to be impossible to make themselves. 3D printing is, obviously, a big part of that, but a variety of other advancements are happening at the same time. We're in the very early days, but machines that help you make stuff are getting cheaper and cheaper, as they get more and more powerful. There are a ton of these kinds of things showing up on crowdfunding platforms, so let's take a look at a few:

• 3D Print on the cheap: The interestingly named Buccaneer 3D printer from the also interestingly named Pirate3D Inc. is one of the cheapest 3D printers around these days, running a bit less than $400. And I remember when people were excited that such printers finally got under $2,000! There are a few other 3D printers around a similar price out there, but it's nice to see that the Buccaneer is focused on both ease of use of the 3D printer, while also trying to make the device itself look nicer than many other 3D printers. Cheaper, easier, nicer looking? Those are things that help 3D printing go mainstream. It's worth noting that there are some concerns about the claims made by the company, and at that price, the quality you're going to get is absolutely going to be limited. But, we're on the cusp of something amazing in 3D printers, and I imagine that it won't be long before we see more cheap 3D printers as the quality increases. But if you want to get in early... The Buccaneer shot past its targeted $100,000 very quickly and is looking like it will go a lot higher by the time it's all done.
• 3D print without 3D printed parts: Honestly, I just found this project more amusing for the fact that it's a 3D printer where the makers spend a lot of time mocking 3D printer output. It's the OpenBeam Kossel Pro, a 3D printer without any parts manufactured by a 3D printer. As the creators point out, 3D printing is great for rapid prototyping, but sometimes good old fashioned mass produced injected molded parts are the right tool for the job, and can make things cheaper on a mass scale. So they've made a 3D printer that is too elitist for its own parts. As I wrote this, it was right about its goal, so by the time you read this, there's a decent chance it'll have surpassed the goal already.
• Make by cutting down, not building up 3D printing is great for building stuff, but sometimes you have to work in the other direction. The folks at Otherlab in San Francisco have built the Othermill, a small, relatively inexpensive CNC mill device so that you can build stuff, such as electrical parts/circuit boards etc. This project's about to close way over its target goal, so if you want one, get in fast.
• Print on stuff: Okay, so the first items above are all about building stuff, but what do you do with that stuff once it's built? Well, you might want to label it, and that's where Tag On That has you covered. It's a printer that lets you label, well, pretty much anything. They claim that it takes the same technology that puts labels on things like phones, computers and keyboards, and puts that into the hands of the everyday consumer. I have to admit, the first time I saw the "print head" template "squash" into the item it was printing on it, it made me smile. I had no idea that's how you do that. Watching the video, you suddenly realize just how much you might possibly be able to "tag." Of course, Portlandia fans already know exactly what to do with such a printer ("put a bird on it!"). Unfortunately, it looks like it's still a bit expensive for everyday use, especially since you'll need to pay a few hundred more if you want to be able to make your own templates for printing (cheaper models come with just one template). Still, the project is more than halfway funded with nearly a month left, which tends to bode well for making it over the goal.
• Print money. Oh, and finally, just because it's funny, we'll link to Regular Everyday Normal Guy Jon Lajoie planning out his Kickstarter campaign to make himself super rich rather than just pretty damn rich. Videos possibly NSFW depending on where you work. Satire is fun.

Phew, that's a lot of items this week, so it should keep you busy for a bit. And when you're done, go print something.

Filed Under: 3d printing, awesome stuff, cnc, crowdfunding, home production, innovation, milling

RIAA: There's Been No Innovation Stifling Here!

from the oh-really-now? dept

I already wrote about my response to Michael Carrier's paper on the "Untold Story" of copyright and innovation, in which he talked to entrepreneurs, venture capitalists and music industry insiders to explore how new technologies and services were stifled in the wake of the RIAA's successful legal campaign in the late 90s to shut down Napster. I wanted to discuss the two other responses that the Wisconsin Law Review published, focusing mainly on the RIAA's response, penned by the General Counsel of the RIAA, Steven Marks, entitled Debunking the "Stifling Innovation" Myth: The Music Business's Successful Transition to Digital. Just the fact that they had a lawyer discussing how successful they were at business and innovation should already tell you there's a problem here, of course.

Basically, the paper tries to paint a rosy picture, rewriting history left and right -- where the labels were dragged kicking and screaming very, very, very slowly into the future by various tech services, often having to fight expensive and damaging legal battles. The RIAA describes this as a "success" story, one "of vigorous licensing of new models by large and small record labels, large investments in music services and related technology, and a vibrant digital market that dwarfs the growth in other media industries."

This is kind of hilarious if you actually lived through any of this. Every new service got threatened or sued. The "authorized" services from the RIAA were purposely designed to be awful, expensive and fragmented. Yes, the music industry has moved forward, by inches, over the past 15 years, but never willingly and never with the kind of speed and embracing of innovation that was necessary. Marks also, somewhat ridiculously, pretends that Carrier ignores the content side of the equation. He did not. He repeatedly made it clear from the various interviews that everyone understood the importance of content, which is why they all desperately wanted the recording industry to move forward with them, which it resisted at every turn.

Professor Carrier also mischaracterizes the relationship between technology and copyright. Professor Carrier inappropriately pits copyright against innovation as though the two are boxers sparring for control rather than partners that work collaboratively and interdependently. The desire of consumers to listen to music has been a driving force for technology and recording companies to build and invest in new platforms and configurations, from vinyl record players to cassette players to CD players to iPods.

The only mischaracterization here is from Marks. Carrier (and the people he speaks to) are pretty clear that the innovators wanted to work with content creators. It's just that the RIAA and its labels did everything they could to make that impossible. Yes, eventually walls were broken down, but way later than was reasonable. The industry refused to license digital music at all for years. It put restrictive DRM on it that made it less valuable. It sued left and right and scared innovators and investors entirely out of the market. It had no interest in actually working with innovators. All it wanted was massive upfront payments.

In the end, though, the crux of the RIAA's argument entirely misses the point of Carrier's piece. It basically says "look, there are lots of services today, what are you complaining about?" But the point was never that killing Napster stopped innovation, but rather that it hindered the pace and nature of that innovation. And the RIAA doesn't address it at all. There's a difference between the direction of change and the rate of change, and the key point is the rate of change, but all the RIAA wants to discuss is the direction, which is meaningless. Innovation can't be denied forever, so of course the direction will move forward. What Carrier's piece discussed, quite clearly, was the pace -- and the RIAA wants to avoid that, and pretend that everything that happened between 15 years ago and now didn't happen to get here. If we were at the point we're at today in 2003, they might have a point. The fact that it's taken us this long and we're still just reinventing radio... well, we've got a long way to go and should have been much further along.

The final response to Carrier's paper comes from law professor Randy Picker, who generally is a pretty strong supporter of copyright. His paper is called Copyright and Innovation: Deja Vu All Over Again, which basically argues that, yes, tech and innovation are in conflict, but because Carrier's paper doesn't suggest any reasonable solutions, it adds little of value.

The real question is not whether copyright matters for innovation; the entire history of copyright and distribution technology suggests that it does. Instead, we need to focus on a more nuanced way in which particular copyright settings can matter for innovation. “The Untold Story” does very little of that. So the article is critical of the efforts of music industry incumbents to protect their positions through litigation and also critical of possible reforms to copyright suggested by academics (including by me). But the article does not really say much about how one would write a copyright statute with distribution innovation in mind.

Notice some built-in assumptions, which may not actually be true. Either way, he looks specifically at three areas of copyright law that are often criticized: duration, secondary liability and statutory licenses. He points out that duration is mostly meaningless, since so much infringement is recent material. On the other two points, he admits that they create uncertainty for businesses, but then suggests that existing rules on both have been set to favor innovation:

The critical question here is how we should calibrate the tradeoffs between copyright enforcement and open-ended innovation. Both Sony’s test and the DMCA safe harbors tilt in favor of innovation and sacrifice the enforcement of copyright. Defenders of those regimes often focus on precisely the way in which the safe harbors enable innovation. The classic vision of Silicon Valley innovation is two guys in a garage, not two guys with their lawyer. Critics of those regimes, and “The Untold Story” points to this work, want more tailored rules to better balance protection of copyrights and innovation, but the discussion is precisely about that tradeoff and the relationship between innovation and copyright has not been lost on anybody participating in that discussion.

Of course, it's not clear that it's actually a tradeoff at all. This assumes that "greater enforcement" actually leads to some noticeable benefit -- and we've seen little evidence to support that (at least in any long term manner). On the other hand what we have seen -- which Picker totally ignores -- is that when innovation occurs it tends to massively expand the markets for the creators themselves. The point I've made repeatedly is that a mere four years after Jack Valenti said that the VCR would be the "Boston strangler" to the movie industry, the home video market was making more money than the box office.

These aren't "tradeoffs." These are maxima reductions. They're removing efficiency from the system to protect an inefficient, legacy way of doing business. That doesn't help expand the market. True innovation creates a bigger pie. It may be challenging at first, because people haven't totally figured it out, but it's not about one party losing and one winning. This isn't a zero sum game, like many seem to think. The "tradeoffs" are between a smaller pie and a bigger one, and Picker seems to be upset if the law favors a bigger pie. I can't see how that makes any sense from an economic standpoint.

Not surprisingly, I don't find either of these responses particularly compelling or convincing. They're arguing things based on claims without a basis, and ignoring reality. What Carrier's paper did so well was bring actual reality into the picture: the stories of entrepreneurs and investors whose innovation was chilled or stopped. The RIAA can pretend it didn't happen and Picker can pretend that it doesn't matter, but basic history and economics say that both are not true.

Filed Under: copyright, innovation, law review, michael carrier, randy picker, stephen marks
Companies: riaa