In that case, piracy seems more like a boogeyman than an actual problem. Notwithstanding any copyright policy argument, if people are generally no longer interested in the product/service/content you're providing, then the solution is to change it up and offer something your customers will like. That's Business 101. Competition is bound to be more successful if your product is inferior to what your competitors are offering. And piracy has always been about competition and not legality. Tougher anti-piracy measures and changing the law to better benefit your position are not just wrong, but they're also bound to still fail if people legitimately aren't interested in what you're offering them.
In one breath, you say that you're fine with not allowing "all speech" and go on to say what particular limits go too far, and then you say that platforms should just be "mere hosts". Well, which is it? Even if we accept your Brandenburg limit argument (which I had to look up; it's the "imminent lawless action" rule proposed by the SCOTUS in Brandenberg v. Ohio), you have to admit that you still need some level of human moderation to achieve that.
But still, as many others have pointed out, Facebook, Twitter, et. al have their own free speech rights as well. They are private entities, so they have the same right to kick Trump and others off of their platforms like I would have the right to kick you out of my house should you come in and start spewing this nonsense. That doesn't mean you aren't allowed to say those things; that's protected by the first amendment. But forcing platforms to host everything unless it falls under the Brandenburg limits is still compelled speech, which is prohibited under the first amendment. GETTR has a right to kick a progressive liberal like me off of their platform just as much as Facebook has the right to kick insurrectionists off of theirs. Content moderation is inevitable; it's just a matter of how sites choose to do it.
I have to disagree with this statement, too. Being wrong about something is a requirement for it to be libel. Libel is written defamation, while slander is spoken defamation. For something to constitute defamation, you must make a statement of fact that is false (and therefore be "wrong" about something), AND, unless it's defamation per se, it has to cause actual harm to the plaintiff.
I still agree libel isn't found here, though. In the case of "health misinformation", it's not defamation per se, and it can't constitute harm to a plaintiff as required by law. To have standing to sue, you have to have a particular injury-in-fact that is caused by the defendant (i.e., Facebook) that can be redressed by a favorable court ruling. In this hypothetical libel case, any "harm" would merely be conjectural (i.e., Simply saying, "Facebook's spreading of misinformation may cause people to avoid getting vaccinated, become infected with COVID, and die," is merely conjecture and not a concrete or particularized injury), thus proving fatal to OP's claim that "libel laws" can provide a cause of action.
But either way, this bill is an unconstitutional disgrace. We need to do something to combat misinformation. But merely blaming Facebook and "Big Tech" for everything because they refuse to "nerd harder" and eliminate all misinformation is pointless. There are other, constitutional, better ways of informing people about the pandemic and COVID-19 vaccines, including things that DON'T require action by Congress to do so. Let's try to come up with those kinds of solutions. But this bill... it ain't it!
I'd also argue that this relevant section should also prohibit patents that fall under BOAC syndrome. A few years ago, I remember almost every month, the EFF's bad patent of the month suffered from the same problem: Existing, well-recognized invention, But On A Computer. This was everything from watching a video (which would affect streaming content) to organizing files and folders in a file cabinet-like system (what almost every file system already does on a computer). Even in the case of the most novel physical invention, anyone familiar with it and how it works could reverse engineer and either simulate or emulate said invention on the computer in software form. How does that not also run afoul under this interpretation of the phrase, "person having ordinary skill in the art"? I'd argue it does, and a lot of those patents would (and should) thus be invalidated, let alone never granted in the first place.
Re: Re: Who says ASCAP can win when there's no prior case law?
Ah, I can see the future Techdirt headline now: Judge Gives Recording Industry an Undeserved Loss: Cop Playing Taylor Swift to DMCA Recording of Him Protected under Qualified Immunity
You know that the law is super messed up when I can fathom a world where Techdirt says the RIAA losing a potential copyright lawsuit is the wrong result...
As ironic as it is, this... messy patent ruling from SCOTUS has the potential to help overturn bad copyright law as well. The newly passed CASE Act would likely suffer the same fate with regards to members of the copyright claims board. This is even clearer than this case: This one panel in a non-judicial branch of government acts as judge, jury, and executioner of copyright claims in one fell swoop. Their decisions are final and virtually unappealable. What was stated before has been made clearer with this SCOTUS decision: This arrangement makes the CASE Act unconstitutional.
Of course, there is the potential that this could backfire, given the logic of the majority that ANY presidential appointment confirmed by the senate could save the panel of pseudo-judges. There was a bill floated around a few years ago that would turn the registrar of copyrights into such an appointment. If this bill was re-introduced and passed, the registrar of copyright could be proposed to fill the same role as the patent office director here. Let's hope that won't happen, but given the copyright maximalists whispering in the ear of Congress, I don't exactly have high hopes that they could let this bad law go.
But as it stands currently, this SCOTUS decision makes it all but certain that the CASE Act is unconstitutional. Of course, we'd need a live case or controversy to make that happen, which won't happen until someone decides to contest the judgment of the copyright claims board in an actual court of law. Until then, all we can do is speculate and hope.
Congress: We need you to fight IP theft and be small!
For instance, how does it make sense for Congress to think that big tech should potentially be liable for intellectual property rights violations by people who use their platforms unless they actively police it, and yet simultaneously criticize them for being so big they need to be broken up into smaller entities that can't possibly meet all of their new proposed demands? Answer: it doesn't make any sense at all.
I see one tiny flaw in this plan on "banning cryptocurrency to stop ransomware attacks". Namely, ransomware creators could care less about the law. Operating ransomware is already illegal, but that doesn't stop cybercriminals from creating and spreading this kind of malware.
And what will happen when ransomware attacks the average citizen, encrypts all their data, and the criminals demand payment only in some type of cryptocurrency in exchange for the decryption key? Sure, there's no guarantee that the crooks will play by their own rules, but this isn't your own data we're talking about. While security firm Sophos recommends NOT paying the ransom, they don't say you shouldn't pay it under any circumstances. After all, when it's your data on the line, and you know you don't have backups of what's been encrypted, you're SOL without paying the ransom.
But under this proposed solution, the victims are left with no recourse. The cybercriminals could care less about the legality (or lack thereof) of cryptocurrencies, but now you have to figure out how to secure something illegal for yourself just to get your data back. What's the solution to their predicament, then? Wait for law enforcement to track down the cybercriminals and recover the decryption keys? What if one of the encrypted documents is time-sensitive and they need to get the data back ASAP? The victim shouldn't just be treated as if they're ever only pipeline workers and government agencies. This is why I'm also against a blanket ban of paying a ransom demanded from ransomware.
Like so many issues discussed on Techdirt, these issues are nuanced and complex, and they shouldn't be treated with patchwork, one-size-fits-all solutions. I'm not saying this to defend the makers of ransomware; I'm saying this to defend all of the victims of ransomware attacks, both large and small. And that's without even looking at, as this article points out, all of the legitimate reasons to use cryptocurrency. Some forms of ransomware may rely on cryptocurrency to function, but cryptocurrency doesn't depend on the existence of ransomware. It's time to start targeting the right problem and not make boogeymen out of things you don't understand because some criminals can use it nefariously.
the faulty assumption that social media services go out of their way to bury posts from politicians "they" don't agree with
As someone who voted for Biden (can't say I like his copyright maximalist stance, nor did I support him in the primaries), how come I was bombarded with Trump ads on social media and only saw a handful of Biden ads? Either the AI in the algorithm can't tell that I'm politically liberal, anti-Trump, both, etc., or conservatives are dead wrong about social media companies wanting to control the narrative against them. Granted, this was (obviously) before January 6th, but still...
Hell, someone should turn this around and push it back on Congress first. Hey, Congress, can you restate the US civil and criminal code such that it is "clear, easily understood, and written in plain and concise language?" How about we try that first before demanding that private companies be forced to do the same for their ever changing policies as well?
Way to steal my joke!
In all seriousness, I do not doubt that Techdirt would fall under the definition of a "social media site" in this bill. I'd be concerned that every other troll and copyright maximalist that is flagged and/or caught by the spam filter would then have a cause of action against Techdirt.
But beyond that, the fact that the rules would be enforced by the FTC is also concerning. The FTC defines a website under a different law (COPPA) to include individual YouTube channels and not just YouTube itself. Under this law, would any YouTuber that moderates their comment section (i.e., EVERY YouTuber), would that open the door to pointless litigation between commenters and YouTubers under this law? I could be wrong, but I normally wouldn't think COPPA affected individual YouTube channels until the FTC said otherwise.
Another question worth asking the sponsors of this bill is... Can the FTC even handle this? A lot of anti-section 230 arguments make more sense as pro-Net neutrality arguments. Yet, when the FCC got rid of net neutrality in 2017, one common argument I've seen from defenders of the repeal is that the FTC would be able to handle the complaints about net neutrality instead of the FCC. Yet, even before it was voted on, the FTC came out and said they couldn't handle such enforcement. And considering that it's a much taller order to police websites as opposed to internet service providers, I doubt the FTC would be able to handle this, either.
And to answer your question about what problem it solves, it appears that at this point, Section 230 is a problem simply because it's a problem. Until we address what it is we're even trying to do, we shouldn't be trying to reform section 230 in every which way possible. Regardless of how some conservatives and even a few liberals might say, Section 230 is working well, and as the old saying goes, "If it ain't broke, don't fix it!"
For a second, I thought I stumbled onto a parody of Techdirt by that title. It takes a very special person to make anti-vaxxers spreading misinformation on Facebook to NOT be the WORST bad guy(s) in the story!
Cathy Gellis hits the nail on the head in her tweet above, not just for this section 230 piece, but also for Ajit Pai’s net neutrality repeal, copyright law reform proposed by Thom Tillis, Article 17 implementations in the EU, etc.:
…remember that there are plenty of credible voices [they] ignored or mischaracterized.
Unless you have evidence otherwise, I don't think Instagram installs malware. It defies common sense. What social media site is going to install malware on the devices of their userbase? Doesn't sound like a way of winning new users over. You also claim:
Signing up/using instagram gives them carte blanche in the TCs to install whatever the hell adware/malware they feel like.
Assuming "TCs" refers to "Terms and Conditions", I looked into Instagram's terms of service. There is no reference to malware in the current terms of service. But in an earlier revision from 2017, the word malware only appears once:
You must not interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any Instagram page is rendered or displayed in a user's browser or device.
This states that YOU agree not to use Instagram to spread malware or use it to interfere with Instagram. It's NOT saying that Instagram is going to install malware and you can't interfere with that installation.
Unless you have evidence I'm not seeing, I don't think Instagram is installing malware.
One of my comments last week triggered the spam filter. That was the first time that happened to me! I don't know why, but I was surprised at how fast it got approved. I just don't get why people complain about filters affecting THEIR content in one breath and insisting sites do more to stop "illegal" and "infringing" content in another.
[Entrenched broadband providers have] also spent countless dollars spreading a lot of nonsense and bile about how community broadband is "socialism"...
I could see arguments for why community broadband could be socialism. I could also see arguments why it's not socialism. But even if it is socialism, that's a problem because why?
On the post: Judge Says Voting Machine Company Can Continue To Sue Trump's Buddies Over Bogus Election Fraud Claims
Re:
That's because that "mountain of evidence" is really a molehill of unfounded conspiracy theories...
On the post: Home Depot Tech Will Brick Power Tools If They're Stolen. What Could Possibly Go Wrong?
As problematic as this is, I'll give them this much...
At least this DRM scheme is aimed at stopping actual theft!
On the post: UFC COO Publicly Pushing 'Notice And Stay Down' Reforms To DMCA, Despite That Being Horrible For Almost Everyone
Re:
In that case, piracy seems more like a boogeyman than an actual problem. Notwithstanding any copyright policy argument, if people are generally no longer interested in the product/service/content you're providing, then the solution is to change it up and offer something your customers will like. That's Business 101. Competition is bound to be more successful if your product is inferior to what your competitors are offering. And piracy has always been about competition and not legality. Tougher anti-piracy measures and changing the law to better benefit your position are not just wrong, but they're also bound to still fail if people legitimately aren't interested in what you're offering them.
On the post: Social Network GETTR, Which Promised To Support 'Free Speech' Now Full Of Islamic State Jihadi Propaganda
Re: You fail to see the big picture as usual.
In one breath, you say that you're fine with not allowing "all speech" and go on to say what particular limits go too far, and then you say that platforms should just be "mere hosts". Well, which is it? Even if we accept your Brandenburg limit argument (which I had to look up; it's the "imminent lawless action" rule proposed by the SCOTUS in Brandenberg v. Ohio), you have to admit that you still need some level of human moderation to achieve that.
But still, as many others have pointed out, Facebook, Twitter, et. al have their own free speech rights as well. They are private entities, so they have the same right to kick Trump and others off of their platforms like I would have the right to kick you out of my house should you come in and start spewing this nonsense. That doesn't mean you aren't allowed to say those things; that's protected by the first amendment. But forcing platforms to host everything unless it falls under the Brandenburg limits is still compelled speech, which is prohibited under the first amendment. GETTR has a right to kick a progressive liberal like me off of their platform just as much as Facebook has the right to kick insurrectionists off of theirs. Content moderation is inevitable; it's just a matter of how sites choose to do it.
On the post: Techdirt Is Now Entirely Without Any Google Ads Or Tracking Code
I can’t believe Google would want to cut funding from a blog ran by one of Google’s own biggest shills. /s
On the post: Senators Klobuchar And Lujan Release Ridiculous, Blatantly Unconstitutional Bill To Make Facebook Liable For Health Misinformation
Re: Re: Error 404: Libel not found
I have to disagree with this statement, too. Being wrong about something is a requirement for it to be libel. Libel is written defamation, while slander is spoken defamation. For something to constitute defamation, you must make a statement of fact that is false (and therefore be "wrong" about something), AND, unless it's defamation per se, it has to cause actual harm to the plaintiff.
I still agree libel isn't found here, though. In the case of "health misinformation", it's not defamation per se, and it can't constitute harm to a plaintiff as required by law. To have standing to sue, you have to have a particular injury-in-fact that is caused by the defendant (i.e., Facebook) that can be redressed by a favorable court ruling. In this hypothetical libel case, any "harm" would merely be conjectural (i.e., Simply saying, "Facebook's spreading of misinformation may cause people to avoid getting vaccinated, become infected with COVID, and die," is merely conjecture and not a concrete or particularized injury), thus proving fatal to OP's claim that "libel laws" can provide a cause of action.
But either way, this bill is an unconstitutional disgrace. We need to do something to combat misinformation. But merely blaming Facebook and "Big Tech" for everything because they refuse to "nerd harder" and eliminate all misinformation is pointless. There are other, constitutional, better ways of informing people about the pandemic and COVID-19 vaccines, including things that DON'T require action by Congress to do so. Let's try to come up with those kinds of solutions. But this bill... it ain't it!
On the post: Patent Quality Week: This One Weird Trick Could Solve Most Patent Quality Problems
PHOSITA is part of the equation
I'd also argue that this relevant section should also prohibit patents that fall under BOAC syndrome. A few years ago, I remember almost every month, the EFF's bad patent of the month suffered from the same problem: Existing, well-recognized invention, But On A Computer. This was everything from watching a video (which would affect streaming content) to organizing files and folders in a file cabinet-like system (what almost every file system already does on a computer). Even in the case of the most novel physical invention, anyone familiar with it and how it works could reverse engineer and either simulate or emulate said invention on the computer in software form. How does that not also run afoul under this interpretation of the phrase, "person having ordinary skill in the art"? I'd argue it does, and a lot of those patents would (and should) thus be invalidated, let alone never granted in the first place.
On the post: Wisconsin Senator's Social Media Bill Aims To Save The First Amendment By Violating The First Amendment
As a Wisconsinite...
Can we please add a theme park exception to this bill? I really would like more theme parks in my state, even if it is run by Google or Facebook!
On the post: Law Enforcement Officer Openly Admits He's Playing Copyrighted Music To Prevent Citizen's Recording From Being Uploaded To YouTube
Re: Re: Who says ASCAP can win when there's no prior case law?
Ah, I can see the future Techdirt headline now:
Judge Gives Recording Industry an Undeserved Loss: Cop Playing Taylor Swift to DMCA Recording of Him Protected under Qualified Immunity
You know that the law is super messed up when I can fathom a world where Techdirt says the RIAA losing a potential copyright lawsuit is the wrong result...
On the post: DRM Strikes Again: Ubisoft Makes Its Own Game Unplayable By Shutting Down DRM Server
Re:
But you wouldn't steal a server that's no longer online, would you?
On the post: Supreme Court Says Patent Review Judges Are Unconstitutional, But It Can Be Fixed If USPTO Director Can Overrule Their Decisions
As ironic as it is, this... messy patent ruling from SCOTUS has the potential to help overturn bad copyright law as well. The newly passed CASE Act would likely suffer the same fate with regards to members of the copyright claims board. This is even clearer than this case: This one panel in a non-judicial branch of government acts as judge, jury, and executioner of copyright claims in one fell swoop. Their decisions are final and virtually unappealable. What was stated before has been made clearer with this SCOTUS decision: This arrangement makes the CASE Act unconstitutional.
Of course, there is the potential that this could backfire, given the logic of the majority that ANY presidential appointment confirmed by the senate could save the panel of pseudo-judges. There was a bill floated around a few years ago that would turn the registrar of copyrights into such an appointment. If this bill was re-introduced and passed, the registrar of copyright could be proposed to fill the same role as the patent office director here. Let's hope that won't happen, but given the copyright maximalists whispering in the ear of Congress, I don't exactly have high hopes that they could let this bad law go.
But as it stands currently, this SCOTUS decision makes it all but certain that the CASE Act is unconstitutional. Of course, we'd need a live case or controversy to make that happen, which won't happen until someone decides to contest the judgment of the copyright claims board in an actual court of law. Until then, all we can do is speculate and hope.
On the post: Congressman Nadler Throws The World's Worst Slumber Party In Order To Destroy The Internet
Congress: We need you to fight IP theft and be small!
FTFY.
Between this big tech copyright paradox and using section 230 as a cudgel against big tech to stop the "censorship" they're supposedly experiencing, the end result is the destruction of the internet as we know it! Congress needs to think twice before they attempt to "break up" big tech or limit liability protections websites enjoy.
On the post: Babies & Bathwater: WSJ OpEd Suggests Banning Cryptocurrency Entirely To Stop Ransomware
I see one tiny flaw in this plan on "banning cryptocurrency to stop ransomware attacks". Namely, ransomware creators could care less about the law. Operating ransomware is already illegal, but that doesn't stop cybercriminals from creating and spreading this kind of malware.
And what will happen when ransomware attacks the average citizen, encrypts all their data, and the criminals demand payment only in some type of cryptocurrency in exchange for the decryption key? Sure, there's no guarantee that the crooks will play by their own rules, but this isn't your own data we're talking about. While security firm Sophos recommends NOT paying the ransom, they don't say you shouldn't pay it under any circumstances. After all, when it's your data on the line, and you know you don't have backups of what's been encrypted, you're SOL without paying the ransom.
But under this proposed solution, the victims are left with no recourse. The cybercriminals could care less about the legality (or lack thereof) of cryptocurrencies, but now you have to figure out how to secure something illegal for yourself just to get your data back. What's the solution to their predicament, then? Wait for law enforcement to track down the cybercriminals and recover the decryption keys? What if one of the encrypted documents is time-sensitive and they need to get the data back ASAP? The victim shouldn't just be treated as if they're ever only pipeline workers and government agencies. This is why I'm also against a blanket ban of paying a ransom demanded from ransomware.
Like so many issues discussed on Techdirt, these issues are nuanced and complex, and they shouldn't be treated with patchwork, one-size-fits-all solutions. I'm not saying this to defend the makers of ransomware; I'm saying this to defend all of the victims of ransomware attacks, both large and small. And that's without even looking at, as this article points out, all of the legitimate reasons to use cryptocurrency. Some forms of ransomware may rely on cryptocurrency to function, but cryptocurrency doesn't depend on the existence of ransomware. It's time to start targeting the right problem and not make boogeymen out of things you don't understand because some criminals can use it nefariously.
On the post: New Jersey State Legislators Think They Can Get Trump Back On Facebook By Passing A Stupid Social Media Moderation Bill
Republicans got it wrong, AGAIN!
As someone who voted for Biden (can't say I like his copyright maximalist stance, nor did I support him in the primaries), how come I was bombarded with Trump ads on social media and only saw a handful of Biden ads? Either the AI in the algorithm can't tell that I'm politically liberal, anti-Trump, both, etc., or conservatives are dead wrong about social media companies wanting to control the narrative against them. Granted, this was (obviously) before January 6th, but still...
On the post: Bad Section 230 Bills Come From Both Sides Of The Aisle: Schakowsky/Castor Bill Would Be A Disaster For The Open Internet
Way to steal my joke!
In all seriousness, I do not doubt that Techdirt would fall under the definition of a "social media site" in this bill. I'd be concerned that every other troll and copyright maximalist that is flagged and/or caught by the spam filter would then have a cause of action against Techdirt.
But beyond that, the fact that the rules would be enforced by the FTC is also concerning. The FTC defines a website under a different law (COPPA) to include individual YouTube channels and not just YouTube itself. Under this law, would any YouTuber that moderates their comment section (i.e., EVERY YouTuber), would that open the door to pointless litigation between commenters and YouTubers under this law? I could be wrong, but I normally wouldn't think COPPA affected individual YouTube channels until the FTC said otherwise.
Another question worth asking the sponsors of this bill is... Can the FTC even handle this? A lot of anti-section 230 arguments make more sense as pro-Net neutrality arguments. Yet, when the FCC got rid of net neutrality in 2017, one common argument I've seen from defenders of the repeal is that the FTC would be able to handle the complaints about net neutrality instead of the FCC. Yet, even before it was voted on, the FTC came out and said they couldn't handle such enforcement. And considering that it's a much taller order to police websites as opposed to internet service providers, I doubt the FTC would be able to handle this, either.
And to answer your question about what problem it solves, it appears that at this point, Section 230 is a problem simply because it's a problem. Until we address what it is we're even trying to do, we shouldn't be trying to reform section 230 in every which way possible. Regardless of how some conservatives and even a few liberals might say, Section 230 is working well, and as the old saying goes, "If it ain't broke, don't fix it!"
On the post: Disgraced Yale Law Professor Now Defending Anti-Vaxxers In Court With His Nonsense Section 230 Ideas
Man, what a title!
For a second, I thought I stumbled onto a parody of Techdirt by that title. It takes a very special person to make anti-vaxxers spreading misinformation on Facebook to NOT be the WORST bad guy(s) in the story!
On the post: Wired's Big 230 Piece Has A Narrative To Tell
A recurring theme here at Techdirt
Cathy Gellis hits the nail on the head in her tweet above, not just for this section 230 piece, but also for Ajit Pai’s net neutrality repeal, copyright law reform proposed by Thom Tillis, Article 17 implementations in the EU, etc.:
On the post: Not This Again: Facebook Threatens To Sue Guy Who Registered 'DontUseInstagram.com'
Re: Don't think that's true
Unless you have evidence otherwise, I don't think Instagram installs malware. It defies common sense. What social media site is going to install malware on the devices of their userbase? Doesn't sound like a way of winning new users over. You also claim:
Assuming "TCs" refers to "Terms and Conditions", I looked into Instagram's terms of service. There is no reference to malware in the current terms of service. But in an earlier revision from 2017, the word malware only appears once:
This states that YOU agree not to use Instagram to spread malware or use it to interfere with Instagram. It's NOT saying that Instagram is going to install malware and you can't interfere with that installation.
Unless you have evidence I'm not seeing, I don't think Instagram is installing malware.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
Techdirt's spam filter
One of my comments last week triggered the spam filter. That was the first time that happened to me! I don't know why, but I was surprised at how fast it got approved. I just don't get why people complain about filters affecting THEIR content in one breath and insisting sites do more to stop "illegal" and "infringing" content in another.
On the post: Washington State Votes To Kill Law That Restricted Community Broadband
I could see arguments for why community broadband could be socialism. I could also see arguments why it's not socialism. But even if it is socialism, that's a problem because why?
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