Are Overly Aggressive Trademark Lawyers Learning Not To Be Such Assholes All The Time?

from the maybe! dept

It's been just over 17 years since I coined the phrase "The Streisand Effect," which has totally taken on a life of its own. A key reason for naming it was to hopefully wake up overly aggressive lawyers to the fact that sending a nasty, threatening cease and desist letters to try to suppress information or stop someone from doing something wasn't a good idea. A few years later, a lawyer friend of mine mentioned that he thought that the concept of The Streisand Effect had done its job -- and that many, many corporate lawyers were much more averse to sending out such aggressive letters, recognizing that there might be a better approach. However, I still find it's pretty typical for many lawyers to immediately go for the the nasty threat letter, so it seemed like perhaps the lawyers hadn't quite gotten the message.

So... it's kind of a pleasant surprise to see how at least one large company -- and possibly a bunch of large companies -- handled the recent "drop" from the merry pranksters at MSCHF (who are no strangers to legal controversies). The new drop is the C&D Grand Prix, in which MSCHF was selling racecar-style shirts emblazoned with corporate logos from some of the biggest (and most legally aggressive in protecting their trademarks) brands out there:

People could buy each shirt, and then there was a special prize: anyone who bought the shirt of the "winner" of the Grand Prix would also get a MSCHF Grand Prix champion's hat. How could a company "win"? By being the first company, whose logoed shirt was for sale, to send MSCHF a cease and desist.

What's funny is that we had considered a remarkably similar idea at Techdirt many years ago (though a bit more focused on highlighting some absurdities of trademark law), but decided not to do it because we don't have a giant bank account like MSCHF does.

Of course, there were some big questions about how would the various companies respond, and, incredibly, none of the companies (as far as we can tell) actually freaked out about this and went ballistic. It's possible such letters are still coming. However, at least one of the companies prodded by the Grand Prix, Subway, actually took this all in good spirit. Very soon after MSCHF launched the Grand Prix, it tweeted "Two can play this game. Who's interested in this bad boy?" and posted an image of a Subway colored shirt, but with MSCHF's logo on the front:

Well played, Subway. Well, played.

Except, of course, to win the Grand Prix, someone had to send an actual cease and desist, and after a few users bugged Subway about it, the company complied:

The tweet says "You asked and you shall receive. Give the people hats @mschf." And the posted image says:

Dear MSCHF,

It is with great pleasure and a distinct honor to send this cease and desist to MSCHF INC. We didn't want to send this, we really didn't, but with free hats on the line, how could we not.

With that being said... stop using our logo or we'll sue you, lol. Now give the people free hats!

Strongly Worded Lawyer Sign-Off,
Subway

Now, obviously, this is joking, but it appears that MSCHF has accepted it as the winning entry in the Grand Prix.

Now, some may be slightly upset that this stunt didn't (yet?) provoke a "real" cease and desist letter, but I'm moderately happy with that fact, as it suggests that perhaps (maybe? really?) itchy trigger trademark lawyers at these big firms are (maybe? possibly?) realizing that shooting off a cease and desist letter at the first opportunity isn't the best decision.

Of course, if they had decided to use the logo of a clothing company like The North Face, perhaps the outcome would have been a bit different...

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Devin Nunes, CEO Of Trump's TRUTH Social, Confirms That 'Free Speech' Social Media Will Be HEAVILY Moderated

from the thank-you-section-230 dept

It's never been a secret that for all of the public claims about how Donald Trump's upcoming social network "TRUTH Social" will be for "free speech" that this was never actually the plan. We noted right up front that its terms of service appeared to be way more restrictive than all the competitors it was criticizing -- and even said it would be a violation of terms to "annoy" anyone working for the site. When Rep. Devin Nunes -- who has a long history of suing people for criticizing and mocking him (i.e., no friend of free speech) -- announced he was retiring from Congress to become CEO of Trump's social network, we noted that he'd be quick to ban people on the site.

And, so it's no surprise that Fox Business is reporting that the site will have "strict" content moderation tools in place, in order to make the site "family friendly."

Fox Business has learned that TMTG is partnering with Hive—a San Francisco-based Series D start-up that provides automated solutions through cloud-based artificial intelligence for understanding images, videos, and text content. Hive’s technology provides automated content moderation across video, image, text and audio.

"We want to be very family-friendly, we want this to be a very safe place, and we are focused on making sure any illegal content is not on the site," Nunes said in an exclusive interview with Fox Business.

"Hive has a great track record in this, and they have been good to work with," Nunes continued. "They are very helpful for our team and because of their experience, I think they’re helping to craft the right spot for us."

He added: "We want to be the most family-friendly site."

Hive is, indeed, pretty widely used by various social media platforms struggling to keep craziness in check -- including Parler and Chatroulette.

But, it's pretty incredible to see Nunes saying this without any self-awareness at all. Considering how much he has criticized Twitter, YouTube and other platforms for their moderation practices -- which were also very much based on the belief of making their platforms "family friendly" for users -- it's pretty ridiculous to pretend that TRUTH Social is somehow different.

Also, the reason that TRUTH Social can work with Hive and make these decisions about how to moderate their platform in a "family friendly" manner is because of Section 230 giving them the freedom to do so without liability -- the very law that Trump himself wanted repealed.

Of course, the real irony is that along with that article on Fox Business is a video clip of Maria Bartiromo, whining to GETTR CEO Jason Miller, about how terrible existing social media companies are because they "censor" content, and talking about how great it is that TRUTH Social will be different. She quotes Trump talking about this "new age of censorship." There seems to be no recognition at all that TRUTH Social will moderate just like every other site does -- and, in fact, this video is over an article saying exactly that. Even more ridiculous: the example that Baritromo uses of "censorship" from the big existing platforms... was not censorship at all. She posted a photo of a sunrise to Instagram, and listed upcoming guests as well as "topics" that they would be talking about, including "vaccines."

It appears this triggered an automated context system on Instagram that when someone tried to share the image, Instagram popped up a note that said "Make sure the information is reliable before sharing" and added a link to a CDC website with information about vaccines. That is not even remotely "censorship." Indeed, it's exactly the opposite. It is the quintessential "more information" -- the very thing that Baritromo, quoting Trump, seemed to suggest we need more of. But because it's about her photo, she claims its "censorship."

Perhaps just as laughable, in that interview, Miller claims "fact is, we're living in the worst period of political censorship in American history." That's absolute hogwash. The opposite is objectively true. Until recently the vast majority of Americans had nowhere to speak publicly about politics. Now they all have places they can speak. It's just that not everyone gets to speak on everyone else's property.

The whole thing is crazy, and it would be nice if Baritromo, Trump, Miller, and Nunes just out and out admitted the reality: they just don't like it when their own nonsense is moderated, and they want separate rules for themselves than for anyone else.

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House Introduces 'Innovation' Act That Will Kill Innovation

from the not-great,-bob dept

A few weeks ago, we warned that Congress should not include the ridiuculously dangerous SHOP SAFE bill in the expected USICA bill. Unfortunately, Congress did not listen.

On Tuesday, Nancy Pelosi released the text of the renamed America Creating Opportunities for Manufacturing, Pre-Eminence in Technology and Economic Strength Act of 2022 (or America COMPETES Act). This is for the bill that had already been renamed from Endless Frontiers to USICA. As we noted in our last post, the crux of the bill actually is really important -- as it attempts to build out a much better infrastructure in the US for core research and development into science and technology. If the bill were actually just about that, I might support it.

But... the bill is an astounding 2912 pages long.

And with nearly 3,000 pages, you would be right in assuming that the House lit this thing up like a Christmas tree full of favors for certain members of Congress. And apparently that includes Rep. Jerry Nadler, who is the main sponsor of the SHOP SAFE Act, which is included in whole -- with no changes, despite the widespread criticism -- in the bill. If you're trying to find it, it starts on page 1672 of the 2912 pages. In other words, buried almost directly in the middle. Gotta hide all the bad stuff, I guess.

There are a few other bad bills included in the COMPETES Act as well, but I'm not going to go through each and every bit of nonsense in the 3000 page bill right now. But I will note that the SHOP SAFE bit is not just actively dangerous, but it undermines the rest of the bill. It does the exact opposite of what's on the tin: it will do significant damage to both innovation and competition, and basically lock in Amazon as the only place where people can sell stuff.

Nadler might as well have named it the "give Amazon a monopoly" Act. I have no idea why Speaker Pelosi would agree to put this piece of garbage in this bill, other than there must be a lot of favor trading going on. As policy expert Josh Lamel noted (accurately), this bill will make life really difficult for anyone who say, uses Etsy, in order to protect some giant European luxury brands who were asking for this nonsense bill in an attempt to control the online marketplace.

We've been talking about SOPA a lot in the past few weeks, and the SHOP SAFE is effectively a SOPA-level bad bill. It basically ends the open internet for selling, unless you're willing to go through the largest platforms, which will have massive compliance rules that will make it close to impossible for small sellers. It's madness.

And... for what? I guess this is an acknowledgement that Nadler can't get SHOP SAFE passed through the regular methods, so he has to hang it on a giant bill to try to sneak it through. That alone is reason enough to reject it. This is the kind of nonsense that makes people cynical and distrustful of the political class, sneaking through bad bills that harm the public but favor giant companies. There's plenty of good stuff in the COMPETES Act. And it's all poisoned with nonsense favor bills like SHOP SAFE (and some others).

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Come Join Our Fireside Chat With Rep. Zoe Lofgren To Discuss Internet Regulations: From SOPA To Now... And Looking Forward

from the don't-miss-it dept

As you've probably seen, for the last couple of weeks we've been running our Techdirt Greenhouse series of posts looking back on the fight against SOPA from those who were there at the time, including one this morning from from Rep. Zoe Lofgren, who was a key player in Congress stopping SOPA. Tomorrow at 1pm PT / 4pm ET, we'll be having Rep. Lofgren join us for a "fireside chat" looking back at what happened with SOPA a decade ago, but more importantly looking at what's happening today with internet regulations and where things are likely to go. If you want to attend live, please register to sign up. Like many of our recent events, we're using the Remo platform, which has the feeling of an actual in-person event, even while it's virtual. You'll be able to talk to other people at your "table" as well as move around to other tables to talk to other attendees as well. During the talk with Lofgren, you'll be able to submit your own questions as well. So please join us tomorrow...

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Yet Another Really Dumb Lawsuit Filed Against Meta Because Some People Who Did A Bad Thing May Have Met On Facebook

from the this-is-not-a-good-lawsuit dept

Everyone wants to blame internet companies for everything. A couple weeks back, a woman sued Meta over the death of her brother, claiming Facebook was to blame. This is the latest in a ridiculously long line of failed lawsuits that look to hold Facebook liable for the deaths of people, just because either the killers or people connected to them somehow communicated on social media. It's like suing AT&T because two people plotting a crime spoke on the phone. These are nonsense lawsuits and they are nuisance lawsuits. This one is no different.

The underlying story here is tragic: two men, who were a part of the "boogaloo bois" (one of the many extremist groups who believe that a new civil war is coming, and that they need to help it along), killed a Federal Protective Services officer, Dave Patrick Underwood. They literally believed that this was part of the process to start this civil war. Its quite understandable while Underwood's family would be furious about this, and the two murderers are going to be in prison for a long, long time.

But trying to demand money from Facebook?

The entire complaint argues that because the two murderers talked on Facebook, Facebook is somehow responsible. It tries to get around Section 230 by arguing that the murderers found each other due to Facebook's algorithms, and somehow that gets around Section 230 (it doesn't).

Facebook, as originally conceived, may have functioned like an enormous virtual bulletin board, where content was published by authors. But Facebook has evolved over time with the addition of numerous features and products designed by Meta to engage users. The earliest of these – the search function and the “like” button – were user-controlled features. In more recent years, however, Meta has taken an active role in shaping the user-experience on the platform with more complex features and products that are not triggered by user requests. The most visible of these are curated recommendations, which are pushed to each user in a steady stream as the user navigates the website and in notifications sent to the user’s smartphone and email addresses when the user is off-platform. These proprietary Facebook products include News Feed (a newsfeed of stories and posts published on the platform, some of which are posted by your Facebook friends or members of groups you have joined, and others that are suggested for you by Facebook), People You May Know (introductions to persons with common connections or background), and Suggested for You, Groups You Should Join, and Discover (recommendations for Facebook groups to join).

These curated and bundled recommendations are developed through sophisticated algorithms. As distinguished from the earliest search functions that were used to navigate websites during the Internet’s infancy, Meta’s algorithms are not based exclusively on user requests or even user inputs. Meta’s algorithms combine the user’s profile (e.g., the information posted by the user on the platform) and the user’s dossier (the data collected and synthesized by Meta to which Meta assigns categorical designations), make assumptions about that user’s interests and preferences, make predictions about what else might appeal to the user, and then make very specific recommendations of posts and pages to view and groups to visit and join based on rankings that will optimize Meta’s key performance indicators.

This is a variation on the "algorithmic recommendations don't deserve 230 protections" argument. There are efforts in Congress to make that explicit, but it's nonsensical -- in large part because recommendations are protected by the 1st Amendment. So even if you got past the Section 230 issue, you're still killed by the 1st Amendment.

And the lawsuit here more or less admits that by saying that these are all opinions:

Meta’s algorithms are carefully protected intellectual property. While they are often characterized as automated and impersonal, they are, in actuality, dynamic and subject to frequent refinement. They also reflect the inferences, judgments, priorities, and decision-making of human programmers, managers, and executives at Meta.

Specifically, they're arguing "negligent design" -- an argument that has been tried repeatedly in 230 cases and fails.

In 2017, Meta changed its mission to giving “people the power to build community and bring the world closer together.”

To accomplish this new mission, Meta redesigned its social media platform and its recommendation algorithms to promote and emphasize user engagement in hobby clubs, civil society organizations, and other community groups.

Meta built a superstructure to support groups, built algorithms to recruit members for those groups, and built algorithms that created an insular world view for members of those groups.

In an interview with CNN, CEO Zuckerberg recognized the real world implications of achieving its goal to expand group membership on its platform: “Once people are coming together in these smaller groups, that actually grows and it ends up with much bigger changes in the world.”

Meta knew or should have known that these changes in the world could very well be negative—even dangerous and harmful to the public—as demonstrated by its own internal research.

I mean, this claim alone actually does a good job of demonstrating why Section 230 is so important in two different ways. First, the whole reason that Facebook changed its efforts towards focusing on community was in response to people freaking out about the 2016 election and misinformation. Facebook took those concerns and tried to respond to them by saying it was changing its emphasis away from news -- in the hopes that this would lessen things like the impact on elections -- and towards community. And yet here, they're being blamed for that attempt (weak as it may have been) to improve their service.

Basically, this shows how any decision on how to run your platform will be second guessed, and (if you're big enough) someone will sue you over it. The very nature of Section 230 is that it allows for these kinds of changes and experimentation to figure out what's best, and recognizes that it's a constant need for adjusting and adapting.

The second reason why this highlights the importance of Section 230 is that 230 is useful in getting these cases kicked out of court quickly, as they should be. Because without Section 230, this case is still a complete loser.

The entire basis of the lawsuit is that because these men met on Facebook, and then later decided to kill someone, Facebook is somehow to blame for the murder. But under that theory, if two people meet at a bowling alley, or a bar, or a restaurant, and later commit a crime, you could hold those meeting places liable? That's ridiculous and clearly cannot fly. Section 230 is helpful in getting such obviously bogus lawsuits kicked out early. Without 230, Facebook still wins this case, but it's just a lot more expensive.

This is a nonsense lawsuit and the lawyers who filed it should be embarrassed. The underlying story is sad, and I feel terrible for the family, but the decision to sue here is a bad one that will not end well.

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Correcting Error 402: Rethinking The Web And Monetization

from the the-web-can-work-differently dept

We're excited today to announce that we've received a grant from Grant for the Web to create a content series on Techdirt exploring the history (and future?) of web monetization, entitled "Correcting Error 402." We'll get more into this once the series launches, but lots of people are aware of the HTTP 404 Not Found error code -- and some people are at least vaguely aware of 403 Forbidden. What most people probably don't know about is the Error Code 402: Payment Required. It's been in the HTTP spec going back decades, with "This code is reserved for future use." But no one's ever actually done anything with it.

And, arguably, the lack of standardization there has created some ancillary issues -- including a few giant, dominant payment processor companies, high transaction fees, as well as the current (and more recent) mad dash scramble to fill the gap by trying to build a zillion different kinds of cryptocurrencies, most of which are fluff and nonsense, but without actually understanding what makes the most sense for an open internet.

Grant for the Web is a project of the Interledger Foundation. Interledger is an attempt to create an open protocol, web monetization standard for handling internet payments and monetization. We've talked a little about all this in the past, when we started experimenting with Coil (a provider of tools to help enable web monetization), and on the podcast we did with Coil founder and Interledger co-creator Stefan Thomas.

But we wanted to dig deeper into the questions of what the web might look like if monetization was built on an open standard as part of the web, and that's what this content series will entail. Expect the series to startup in about a month, and to explore the history, present, and future of monetization. And, just to answer a few questions you might have: this series is not going to be about cryptocurrency (though it may get mentioned in passing), because that's not central to the questions here, and it's also not going to be just about Interledger/Coil's vision of the future. It's designed to be a deeper exploration of the question of monetization online and how it should work.

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The Internet Wins: Adblocking (And Other Extensions) Don't Violate Copyright Law In Germany

from the well,-of-course dept

For way too long now, short sighted publishers have insisted that ad blocking is "stealing." That's always been bullshit. Back before we turned off all our 3rd party ads last year, we were perfectly fine with people using ad blockers (and we even let you just turn off ads in your preferences, if you preferred that approach).

But some publishers still don't get it. One of the worst is the German media giant Axel Springer, who was one of the most vocal proponents of the EU Copyright Directive, and owns tons of publications around the globe, including Politico and Business Insider in the US. As obnoxious as some publishers are regarding the internet, Axel Springer has been worse. Years back, Axel Springer sued the company behind Adblock Plus and lost. The courts found that adblocking is perfectly legal.

Axel Springer decided that can't be left to stand, and decided to try again with everyone's favorite tool of control: copyright. In 2019 Springer came up with a bizarrely stupid argument that ad blocking is copyright infringement. The argument was that because the browser extensions change how a website is displayed in your browser, that it "changes the programming code of websites" and that makes it infringing. But that's nonsense. Adblockers work on content that is already directly in your browser that the company sent in an authorized manner.

It's the equivalent of saying that taking a highlighter to a book that you own is copyright infringement.

Thankfully, last week a court in Hamburg saw it that way as well and said that adblocking is not infringement. This is important not just for adblocking but for basically any kind of browser extension and for the concept of HTML itself.

From an automated translation of the ruling, the court says that "there is no unauthorized duplication and/or reworking of copyrighted computer programs" under the meaning of copyright law. It further says:

Although the HTML file and other elements are loaded into the user's main memory when the plaintiff's pages are called up, the storage takes place with the plaintiff's consent. Anyone who provides a website agrees that the corresponding programs are called up from the website operator's servers - and in some cases from third-party servers - and stored in the user's main memory. The very purpose of offering websites is that they are accessed by users. The intermediate steps that are absolutely necessary for this include the intermediate storage of the files provided by the website operator on the user's computer. Users who call up the pages of the plaintiff and use the program "AdBlock1 Plus" are also entitled to store the files. If the user calls up the files by calling up the website and the files - as provided by the plaintiff for the case of the website call-up - from the servers of the plaintiff - or third party servers - are stored by the plaintiff.

If the files are transferred, an implied agreement is made that the user may save the files. Since the files themselves remain unchanged, no possible reservation regarding deviations from the intended program flow applies at this point. It is therefore irrelevant whether the permissibility of the unchanged storage of the files also follows from Section 69d (1) UrhG and/or Section 44a UrhG.

The ruling also notes that the HTML files "are not changed by the program "AdBlock Plus." It merely "has an impact on the data structures generated by the browser."

More importantly, the court notes that:

It would also represent a disproportionate encroachment on the user's freedom of action if it were not up to the user to decide whether and how to execute a legally acquired program, as long as the user does not modify the program itself...

This ruling may still be appealed, but as former EU Parliament member Julia Reda notes in response to this ruling:

“This ruling sends an important signal that frivolous lawsuits will not be accepted. The court has correctly concluded that the copyright protection of software does not extend to the outputs of software. Just as copyright law does not entitle a book publisher to forbid readers from underlining sections of a book or writing in the margins, copyright law does not give digital publishers the power to tell users how to display a website,”

But it certainly does tell us just how much big publishers like Axel Springer will seek to abuse copyright law to gain extra control over users...

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Vice Publishes Bullshit Nonsense Article Blaming DEFCON Voting Village For 'Stop The Steal' Idiots

from the this-is-bad-reporting dept

Vice News has some really great reporters on tech issues who work for its Motherboard publication. For reasons that don't make sense, last week they had some other reporter write an absolutely ridiculously bad story trying to argue that the "stop the steal" idiots were helped along by the amazingly important work done by folks in the famed "Voting Village" at the DEFCON conference. The full article is long and bad and has the ridiculous and misleading title: How an "Ethical" Hacker Convention Is Fueling Trump's Big Lie. But the very premise of this story is not just wrong, but dangerously stupid. It's shameful that anyone at Vice thought this was an appropriate story to publish.

The facts are this: there have been quite reasonable concerns about the security and technology in certain electronic voting machines going back decades. In fact, Techdirt covered tons of these stories, which were often about problems with the security in early machines, the lack of paper trails for the votes, and (perhaps most importantly) the unwillingness of the voting machine companies to work transparently with actual security researchers who could help harden those machines. Voting Village was set up in DEFCON as a response to that, in which these ethical hackers would get their hands on voting machines, seek out the vulnerabilities in order to help harden the security and improve these machines. It's how cybersecurity has always worked.

And while it is true that some of the Stop the Steal grifters have tried to take some of the headlines or presentations from DEFCON and pretend that they prove that the 2020 election was hacked or broken or whatnot, that's got nothing to do with Voting Village "helping" them. If it weren't for Voting Village, those same grifters would have found other reports and other news stories to misinterpret and to make their unsubstantiated claims.

The simple fact is that just because security researchers have concerns about some voting machines, and have worked to highlight where security vulnerabilities might be, that does not mean that an election is easily hacked, or that any election was actually hacked. That's the kind of thing that the "stop the steal" grifters have never been able to show and all of the evidence to date has failed to substantiate.

Paragraphs like this are utter nonsense:

And then there is DEFCON. The experts here agree that there was no evidence of widespread voter fraud in the 2020 election, and many have worked hard to debunk those conspiracy theories. But with its sensationalist rhetoric, flashy theatrics, unstructured hacking, and lack of context about how elections operate, DEFCON also emphasizes the vulnerabilities that are possible, even when they’re not necessarily probable. As a result, the event serves as easy fodder for dis- and malinformation, showing how even well-intentioned experts are being used to prop up the Big Lie.

Yeah, it emphasizes vulnerabilities are possible because of course they're possible. That's just being factual and accurate. And, on top of that, the way to minimize those vulnerabilities and to better protect elections is to allow security researchers to find those vulnerabilities, report them, and seek better ways of protecting voting. And that's exactly what Voting Village does. Arguing that they should somehow be blamed because idiots are misrepresenting their work, as if the work was the problem is so disingenuous to be effectively disinformation.

Or as security researchers Rob Graham rightly notes:

As he notes later in the thread, "pretty much all government transparency information is at some point misrepresented by conspiracy theorists" but that's no excuse to say we should have less transparency.

Others, like Kim Zetter -- one of the best cybersecurity reporters ever -- point out that the reporter's main sources for the article appear to be people close to voting tech companies and election officials, which are the two groups of people who are most frequently embarrassed by the security research that comes out of Voting Village. In other words, this was a hit piece, put in place by folks who have long wanted to destroy Voting Village. In fact, Zetter highlights that one of the main sources quoted in the article has complained about Voting Village for years, which seems like extremely relevant context that was left out of the article.

Others noted that many of the actual experts in this space -- names which have been mentioned on Techdirt frequently, like Alex Halderman and Matt Blaze -- are not quoted in the article at all. The author claimed that while he spoke to many such experts he didn't have room to include their quotes. Maggie MacAlpine, a Voting Village organizer notes that neither she nor any of her colleagues were quoted, and the article is full of "unattributed, and factually incorrect statements."

Matt Blaze -- again, one of the foremost experts on election security issues -- summed up the nonsense premise of the article perfectly:

He later notes three important facts about the complicated world of computer security:

• There's been great progress securing US election infrastructure.
• There are still serious vulnerabilities and much work is left to be done.
• Yet there's no evidence technical attacks have altered election outcomes.

And the only reason the first bullet point is as true as it is, is because of the work of the security researchers like those who populate Voting Village every year at DEFCON. The only reason more work is progressing on the second point is because of the same thing. And articles like this one in Vice make that much, much more difficult.

Do better, Vice.

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Harrison Greenbaum Latest Trick: Having Paul Levy Respond To Criss Angel's Thuggish Legal Threat

from the don't-try-this-at-home dept

Last week, we wrote about how entertainer/magician Criss Angel sent a ridiculous threat letter to comedian/magician Harrison Greenbaum after Harrison created a parody website/menu gently mocking Criss Angel's bizarrely named restaurant, CABLP. Greenbaum had announced on Twitter that he wasn't going to stand for this kind of bullying, and apparently he made the very smart decision to have Public Citizen Litigation Group lawyer Paul Levy respond on his behalf. If you've been reading Techdirt for any length of time, you should probably know that if you're on the receiving end of a letter from Paul Levy, you've probably done something very dumb. But, damn, Paul's letters are just so entertaining -- you can just picture the grin on his face as he writes these. And I'm not going to mention all the puns/references to magic, because I'll let you spot them all on your own.

It opens up pretty much as you'd expect: this is the situation, your client sent a dumb letter demanding ridiculous things, and no, my client isn't going to cave to your demands:

I write in response to your January 3, 2022 demand letter on behalf of your clients, Christopher Nicholas Sarantakos, a/k/a/Criss Angel, and unidentified companies, contending that a parody menu created by Harrison Greenbaum and posted on the internet using the domain name CablpRestaurant.com infringed your clients’ copyright and trademark. Your demand letter insists that Greenbaum stop making fun of your client’s menu and that he transfer the domain name to certain unnamed clients that you promise to identify later. As I now explain, Greenbaum is completely within his rights under well-established precedent, both under the copyright and trademark laws and the First Amendment, and he is not going to take any of the steps that you demand.

Then a little background on the situation, with the little zinger of a link to a news article about how basically everyone is baffled by the name of Angel's restaurant:

First, the facts. Your individual client is, as your letter noted, a well-known magician; in addition, he has, apparently through the unidentified companies, opened a restaurant called Criss Angel Breakfast, Lunch and Pizza, using his professional name; they have chosen eatblp.com and cablp.com as the restaurant’s domain names (the latter points to the former). Greenbaum is a magician, but is also an established comedian and professional comedy writer. Greenbaum regularly satirizes the state of magic and other magicians; this year, your client was one of several magicians who received the homage of being featured in his comedy. As one part of this year’s jokes, Greenbaum made fun of your clients’ restaurant by creating a parody of the menu and posting it online using the domain name CablpRestaurant.com. The name of your clients’ restaurant had already been widely pilloried in the industry, see Schwartz, Is Criss Angel’s ‘Cablp’ the Worst Restaurant Name of All Time?, (May 20, 2021), https://www.vice.com/en/article/3aqdqj/is-criss-angels-cablp-the-worst-restaurant-name-of-all-time. Greenbaum’s approach was more lighthearted. Not one of the other targets of Greenbaum's jokes has ever threatened to sue over them.

Then there's the obligatory "lemme explain to you how parody works" part:

Your letter says that Greenbaum has “publicly admitted that [he] intentionally [is] infringing” and “admit[s] that [he] illegally registered” the domain name, but this sleight of hand will not deceive federal judges. Greenbaum has openly proclaimed the registration of the domain name and the publication of the parody; he did not admit that anything of this was illegal or intentionally infringing, not surprising given that his speech is lawful and could not possibly cause confusion about source or sponsorship. The parody menu uses many of the same dish names as your clients’ menu does, but Greenbaum has replaced your client’s food descriptions with humorous references of his own. Each of your clients’ prices ends in .99 (such as $4.99 or $12.99), but on the parody menu, most of the prices are absurdly high (starting at $66.99 and going up to $4801.99), while others are absurdly or low (pizza for $1.99). In addition, both the top and bottom of the menu are larded with disclaimers making clear that the page is a joke, not Angel’s own restaurant page. Before the menu begins, the following appears: “THIS IS VERY OBVIOUSLY A PARODY. IF YOU WOULD LIKE TO ACCESS CABLP’S REAL MENU, CLICK HERE” (and the word “HERE” is hyperlinked to your clients’ actual menu). Next to your clients’ restaurant logo, featuring the encircled A with the letters blp, Greenbaum placed the word “(NOT).” At the bottom, among the other parody signals is the caption, “THIS IS A PARODY AND NOT THE REAL MENU, I MEAN, C’MON, YOU ALREADY KNEW THAT, RIGHT?,” and below that Greenbaum urged his readers to donate to your client’s foundation, the Johnny Crisstopher Foundation, providing two hyperlinks to the page on your client’s web site that appeals for donations to that charity. Moreover, Greenbaum has included “THIS IS A PARODY (DUH!)” in the title tag, which will appear when the parody page begins to show up in search rankings as the Streisand Effect takes hold.

Then, the legal stuff, that basically says "your threatening schtick may work on those unfamiliar with the law, but Paul Levy knows the law."

You contend that this parody and the domain name violate your client’s trademark rights, but the law has already sawed that claim in half. First of all, Greenbaum has made an entirely noncommercial parody of your clients’ menu, and his speech about your client is entirely opinion; to the extent that it is factual, it is truthful. His domain name truthfully identifies his web site as being about your clients’ restaurant. Truthful speech and opinions are protected by the First Amendment, and that will be his first line of defense. Indeed, in the Ninth Circuit, where your client lives, as well as in many other circuits, such noncommercial uses are not subject to scrutiny under the trademark laws. Bosley Medical v. Kremer, 403 F.3d 672 (9th Cir. 2005); Radiance Found., Inc. v. N.A.A.C.P., 786 F.3d 316, 322 (4th Cir. 2015) (citing cases).

More specifically, many decisions of the federal courts of appeals—including the Ninth Circuit—preclude the use of trademark law to stop the use of domain names in the form www.trademark.com for noncommercial web sites about the trademark holder. In addition to Bosley, these cases include Utah Lighthouse Ministry v. Foundation for Apologetic Information & Research, 527 F.3d 1045 (10th Cir. 2008); Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005); Nissan Motor Co. v. Nissan Computer Co., 378 F.3d 1002 (9th Cir. 2004). TMI v. Maxwell, 368 F.3d 433 (5th Cir. 2004); and Taubman v. WebFeats, 319 F.3d 770 (6th Cir. 2003). See also Lamparello and Lucas Nursery and Landscaping v. Grosse, 359 F.3d 806 (6th Cir. 2004) (cyberquatting law cannot be invoked to cancel domain names for critical web sites about the trademark holder); Utah Lighthouse, supra (same); Lamparello, supra (same). Even Houdini could not wriggle out of those constraints if the case proceeds in the Ninth Circuit.

In the Second Circuit, your claim would have to be one of initial interest confusion, which “requires a showing of intentional deception.” Savin Corp. v. Savin Group, 391 F.3d 439, 462 (2d Cir. 2004), citing Bihari v. Gross, 119 F. Supp.2d 309, 319 (S.D.N.Y.2000); and BigStar Entm’t, v. Next Big Star, 105 F. Supp.2d 185, 207 (S.D.N.Y.2000). Greenbaum’s disclaimers are strong evidence of his lack of deceptive intent. Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526, 556 (5th Cir. 1998); Fischer & Frichtel Custom Homes v. Fischer Mgt., 2021 WL 1750174, at *6 (E.D. Mo. May 4, 2021); Smith v. Wal-Mart Stores, 537 F. Supp. 2d 1302, 1338 (N.D. Ga. 2008); Virginia Polytechnic Inst. v. Hokie Real Estate, 2011 WL 926862, at *13 (W.D. Va. Mar. 15, 2011). Your implicit initial interest confusion argument cannot prevail on the facts of this case, considering the many prominent “THIS IS A PARODY” statements. Moreover, because Greenbaum has played off your client’s mark as part of an artistic or literary performance, the artistic relevance standard of Rogers v. Grimaldi, 875 F.2d 994, 1000 (2d Cir. 1989), provides a strong defense for Greenbaum’s use.

The threat letter also included a copyright claim which was so dumb we didn't even mention it in our original article, but Levy wasn't going to let that slide either:

Your claim of copyright infringement does not levitate your threat of litigation into the realm of the plausible. You do not specify which client owns the alleged copyright, but searching the register for copyrights registered by Sarantakos himself, I see that although he has registered the copyright in a number of his works, it does not appear that his menu is one of them. Such registration is a necessary predicate for an infringement suit. 17 U.S.C. § 411. Indeed, one might question whether the menu is original enough to support a claim of copyright; but if it is, Greenbaum has made fair use. The use is both non-commercial and transformative, providing strong support on the first fair use factor. Greenbaum’s use will in no way interfere with the market for your client’s use, hence the fourth factor also favors Greenbaum. The menu is a factual description of the food available for purchase at your clients’ restaurant, which gives them little support on the second fair use factor. And Greenbaum has only used the basic format of the menu as well as a few of the food categories—the least original part of the work—while substituting his own humorous food descriptions and even some parody food categories, so the third factor favors Greenbaum as well.

And then the closing, which contrary to what that famous movie says, is not called "the prestige," but this works either way:

Greenbaum would prevail whether you sued him in federal court in Las Vegas or in New York, and proceeding under the UDRP would not enable your client to pull a rabbit out of his hat. If you initiate a UDRP proceeding, we will seek a declaratory judgment of noninfringement, and invoke the stay provisions of the URDP so that Greenbaum can defend his First Amendment rights in federal court.

Or, you can just allow your claims to pull a disappearing act. Otherwise, Greenbaum will stand up for his rights rather than complying with your demands.

Anyway, Paul Levy's greatest magic trick is making thuggish legal bullies crawl into a little ball of despair and (if they have any sense at all) disappear.

On a separate note, I will mention that earlier this week, Criss Angel actually released a touching short documentary film about his young son who has been battling cancer (for what it's worth, as mentioned in Levy's letter, in Greenbaum's parody menu, he directed people to the foundation Angel set up, the Johnny Crisstopher Foundation). I recommend watching the film and it's nice to see how much time and effort Angel is putting into trying to help kids with cancer. He deserves praise for that. But it seems pretty silly to wipe away that kind of goodwill with thuggish legal threats over someone making a good-natured parody over your silly restaurant menu.

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Totally Bogus DMCA Takedowns From Giant Publishers Completely Nuke Book Review Blog Off The Internet

from the but-piracy-is-the-problem? dept

Just as we're in the midst of a Greenhouse series all about SOPA, copyright industry lobbyists, and former copyright industry lawyers now running the Copyright Office are conspiring to make copyright law worse and to favor Hollywood and give the big giant legacy copyright companies more control and power over the internet.

And, yet, we pay almost no attention to how they massively abuse the power they already have under copyright law to silence people. The latest example is the book review blog, Fantasy Book Critic. I'd link to it, but as I'm writing this all you now see is a message that says "Sorry, the blog at fantasybookcritic.blogspot.com has been removed."

Why? Because two of the largest publishing companies in the world, Penguin Random House and HarperCollins, hired a ridiculously incompetent service provider called "Link-Busters" which specializes in bullshit automated DMCA takedowns for the publishing industry. Link-Busters' website looks like basically all of these sketchy, unreliable services, promising to "protect IP" and (even more ridiculously) "turn piracy into profits."

The company also claims on its website that "you can be assured your work will be protected to the fullest extent," and also: "According to multiple independent metrics, Link-Busters quarantines and/or eliminates more pirated content than other anti-piracy services." Of course, it's easy to get more things taken down if you don't give a shit as to whether or not it's actually infringing. And apparently, that is Link-Busters' secret sauce: sending bogus DMCA takedowns for things like book review websites.

On Monday, Link-Busters, on behalf of Penguin Random House and HarperCollins sent over 50 bullshit takedown notices to Google, claiming that various reviews on Fantasy Book Critic were actually infringing copies of the books they were reviewing. Each notice listed many, many blog posts on the site. This is just a small sample of four such notices.

The actual notices do contain some links to websites that appear to have pirated copies of some books available, but also lots of links to Fantasy Book Critic's reviews. The whole thing just seems incredibly sloppy by Link-Busters. Some of the "allegedly infringing" books in some of these notices didn't even include links to allegedly infringing pages.

And then some show the only allegedly "infringing" links being... Fantasy Book Critic's reviews:

That link, which again, does not exist any more, can be seen on the Internet Archive where you see that not only is it clearly a review, and not piracy, but it directly links visitors to places where they can buy the book. Turning piracy into profits, huh? By taking down review sites pushing people to places where they can buy the book?

Of course, the real problem here is that there are no consequences whatsoever for Link-Busters or Penguin Random House or HarperCollins. While the DMCA has Section 512(f), which is supposed to punish false notifiers, in practice it is a dead letter. This means, Link-Busters can spam Google with wild abandon with blatantly false DMCA notices and face zero consequences. But, more importantly, publishing giants like Penguin Random House and HarperCollins (which are currently suing libraries for offering lendable ebooks), can get away with this abuse of the law over and over again.

Fantasy Book Critic was reduced to begging on Twitter for Google to look more closely at Link-Busters bogus notifications and to restore their blog. They even contacted Link-Busters which admitted that they fucked up (though, perhaps they should have checked before sending these bogus notices?)

Either way, among the many, many reasons why we opposed SOPA was the recognition that this kind of thing happens all the time, and the "remedies" under SOPA were that entire websites would get blocked at the DNS level under mere accusations of copyright infringement. In this case, it's slightly different because Google (under a different part of the DMCA) is required to shut down "repeat infringer" accounts, and so here it took down the entire blog that was hosted on Google's blogspot. The punishment under SOPA would have been even more draconian -- blocking all access to the blog at the DNS level entirely.

So, as Penguin Random House and HarperCollins and their lobbying arm -- lead by the former director of the Copyright Office, Maria Pallante -- are currently trying to convince Congress to make copyright law even more in their favor and to shut down digital libraries, perhaps we should be looking at moving copyright in the other direction, so that these "mistakes" can't happen any more. Perhaps copyright law shouldn't allow the shutting down of a website based on totally bogus accusations from an automated spammer hired by the largest publishers in the world, where no one cares about what they might actually be taking down?

The problem is not piracy. The problem is copyright law enabling actual censorship -- using the power of the law to silence speech.

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States' 3rd Amended Antitrust Complaint Against Google Looks A Lot More Damning

from the pay-attention-to-this-one dept

There are lots of different antitrust actions currently ongoing against Facebook and Google, with varying degrees of quality. From the beginning, the strongest one has been the lawsuit a bunch of states -- led by Texas -- filed against Google. When it was filed, I noted that there were sections that were heavily redacted which had the potential to be pretty damning, but the redactions made it hard to tell. I also found some of the non-redacted bits questionable, as they suggested a complete misunderstanding of some aspects of the technology. Last Friday, Texas filed its third attempt at a complaint and it reveals a lot more about the stuff that was redacted in the earlier filings -- and I'll now say that this is the most serious, and the most damning, of all the antitrust lawsuits out there. How Google responds to the lawsuit will be extremely interesting and worth watching. Given the errors in the original filing, it's possible that there are errors here too, but if what Texas is alleging in this latest version of the lawsuit are accurate, then Google should be in trouble.

The filing is 242 pages long, and much of it gets deep, deep into the weeds about the online advertising market. But there are two key parts that stand out as potentially very important and very damning for Google (and, partly, for Facebook as well). Most of the news coverage has focused on the claim that Sundar Pichai and Mark Zuckerberg signed off on a special deal to combat header bidding -- a form of getting around Google's position in the ad market. When the header bidding claims first came out, I found them questionable, as the early claims suggested that Google was abusing its position to kill off header bidding, which seemed ludicrous to me, because I'm contacted probably half a dozen times a day by ad companies offering their header bidding solutions for me to use. But, the details now revealed suggest Google really did work with Facebook to try to suffocate the header bidding market:

Facebook understood these stakes as well. Internal Facebook communications indicate that Facebook’s March 2017 announcement was intended to signal Facebook’s willingness to support header bidding. Facebook knew that Google would see its participation in header bidding as a major threat. Evidently, Facebook was executing a planned long-term strategy—“18 month ‘header bidding’ strategy to minimize “[the Exchange Bidding] tax”—by threatening to expose the hidden costs Google charges publishers.

Google and Facebook entered into formal negotiations shortly thereafter. Both sides recognized that Facebook’s leverage came from its critical role in supporting header bidding. As a Facebook document from February 2, 2017 memorialized, “What Google wants: To kill header bidding (us baptizing their product will help significantly).” Elsewhere, Facebook employees summarized an earlier meeting between the parties discussing header bidding and Exchange Bidding (“EBDA”), “We discussed the EBDA product they’re building. Both parties (FB and G) were candid about why header bidding exists and that EBDA’s sole reason for existence is to kill it.” In an October 30, 2017 email, senior Facebook executive [REDACTED] discussed the proposed Google-Facebook agreement and explained to another Facebook executive, [REDACTED] , “they want this deal to kill header bidding.” Google put the matter just as bluntly, explaining internally in 2017 that the goal of partnering with Facebook would be to “protect” Google’s “leadership position in 3P [third party] ad buying/selling.” To that end, the endgame with Facebook was to “collaborate when necessary to maintain status quo.” The “status quo,” in this case, was an unlawfully obtained ad server monopoly and an ad exchange charging many multiples over the competition.

As negotiations proceeded, Google began to accept that Facebook’s price for abandoning header bidding would require Google to share some of the auction advantages it had previously taken for itself. In an August 9, 2018, internal Google presentation, one slide averred that if Google could not “avoid competing with FAN” in the trade for third-party inventory, then it would instead collaborate with Facebook to “build a moat.” Google thus preferred to share a slice of its monopoly profits with a potential entrant rather than risk reducing its monopoly power.

The prospect of cooperating rather than competing with Google was enticing for Facebook too. As internal Facebook documents reveal, Facebook believed that partnering with Google was “relatively cheap compared to build/buy and compete in zero-sum ad tech game.” Facebook identified “build/buy ad tech” as the company’s second-best option but noted that entering the market would have required “huge [engineering] and services investment, and patience for sales cycle.” Compared to the time and expense of building a new technology and competing on the merits, entering an unlawful deal with Google not to do those things was an attractive option.

Facebook’s Chief Operating Officer [REDACTED] was explicit that “[t]his is a big deal strategically” in an email thread that included Facebook CEO [REDACTED] When the economic terms had taken their form, the team sent an email addressed directly to CEO [REDACTED]: “We’re nearly ready to sign and need your approval to move forward.” Facebook CEO [REDACTED] wanted to meet with COO [REDACTED] and his other executives before making a decision.

The ultimate outcome of these negotiations was a September 2018 Google-Facebook agreement signed by Philipp Schindler, Senior Vice-President and head of Google advertising sales and operations, and Ms. [REDACTED] Facebook’s Chief Operating Officer and member of Facebook’s Board of Directors, who herself was one-time head of Google advertising. Google CEO Sundar Pichai also personally signed off on the terms of the deal.

Two quick asides before getting into the meat of this: First, I have no clue why the obvious names of Mark Zuckerberg and Sheryl Sandberg are redacted here. They are the CEO and COO of Facebook and there's no mystery in that. It seems like a really bizarre choice to redact them when their titles are named, and even Sandberg's former job is mentioned. Second, (and maybe this explains the redactions?), it sure feels like a similar suit about this very same deal may now be on the horizon for Facebook.

As for the substance, again it will be interesting to see Google's response on this, but from this description, it sure looks like pretty garden variety anti-competitive behavior that involved two giants in the marketplace working together to limit the impact of a system that would chip away at the market they mostly controlled. If this is what happened and this is what the deal was about, then this lawsuit looks entirely legit.

The second really interesting bit in the case is the part I would argue is even more damning against Google, and if it's shown to be true, I hope that Google is significantly fined and banned from this practice. Politico's antitrust reporter Leah Nylen did a wonderful job breaking down the claims about how Google's "Project Bernanke" supposedly worked and if this is what Google did, it sure sounds like straight up deceptive practices, bordering on fraud -- and Google should probably need to pay out a lot of money to publishers who had Google ads on their site at the time.

At issue are the different types of auctions, and Google is accused of misrepresenting what kind of auction it was running. As the lawsuit explains:

By way of background, “first-price” and “second-price” auctions are common types of auctions used in various industries and contexts. Generally speaking, in a first-price auction, the buyer pays the amount of their own winning bid; and as the name implies, the buyer in a secondprice auction pays the amount of the second-highest bid (sometimes with a negligible additional amount, e.g., one penny). A “third-price” auction, therefore, is one in which the buyer pays the amount of the third-highest bid. As addressed below, Google’s secret Bernanke program surreptitiously switched Google’s AdX exchange from a second-price auction to a third-price auction on billions of impressions per month.

This may sound a bit confusing, but as Nylen points out, in a first price auction -- the kind most people usually think of as an auction -- the highest bidder ("the first price") is what is paid. As Nylen says: "So, if Henry bids $19, Alice bids $18 and Scott bids $9 — Henry wins and pays $19." A second price-auction or a Vickrey auction means that in the above scenario the winner pays the second highest bid -- i.e., Henry wins, but pays $18. This is the way that eBay auctions work, and some argue it provides a more efficient solution for getting bidders to bid the real value they put on the item up for bid.

From here, it's not that difficult to figure out what a "third-price" auction means -- in the above scenario it would mean that Henry wins, but only pays $9. It's hard to see a situation in which that actually makes sense, but here the complaint accuses Google's "Bernanke program" of effectively shifting between 2nd and 3rd party auctions within the same auctions and collecting all of the remaining cash. In the above example, the way this would work is that Henry bids $19, Alice bids $18, and Scott bids $9 in order to, let's just say, put an ad on Techdirt. Again, according to the complaint, Bernanke would effectively ignore the 2nd bid on the publisher side, telling us that the second bid was actually Scott's $9 bid, and therefore claiming to us (or any publisher) that the "clearing" price was $9 -- and it would then take its 20% fee of $1.80. But for the advertiser, Google would still show them the actual top three bids, telling them that $18 was the clearing price. So now, rather than Techdirt (the publisher) get the $14.40 we should be getting, we'd be getting just the $7.20, and Google would walk away with $10.80 (rather than the $3.60 it claimed it would take).

That's all a bit confusing, but this graphic in the complaint makes it clearer:

Now, those numbers are pretty stark, and the amounts would be quite different if you had 3 bids that were all pretty close, but the complaint notes that Google's own internal data showed that Bernanke lowered publishers' revenue by 40%.

Google examined some of the effects of its secret Bernanke program, finding that it drops any given publisher’s revenue by upwards of 40 percent. Stating the obvious, one Google employee observed: “Bernanke is powerful.” Publishers had no idea Google was dropping second highest bids and impacting their revenues in this way.

That certainly looks like a combination of deceptive practices and something close to fraudulently taking money that was supposed to go to publishers. At the very least, this revelation is absolutely going to lead to some publishers filing a separate civil suit against Google demanding their cut, and possibly having it turn into a class action lawsuit. Hell, I'd bet advertisers are going to file a similar suit noting that they overpaid for ads as well.

Given some of the other information in the complaint, there are some hints as to how Google got to this point. The description above sounds pretty damn evil, but there's a kind of dumb and dangerous internal logic. Google realized that it was starting to lose ad auctions to 3rd party systems quite a lot, and the original point of Bernanke was apparently not to steal money from publishers, but to have Google start winning more auctions. So, the initial idea behind Bernanke seems to have been to inflate bids to try to win more auctions -- and in those cases you can see a kind of logic to dropping certain bids from the auction as they were "artificially" inflated in order to win more auctions. Though... that's still pretty sketchy.

Again assuming this is accurate, this is, to put it mildly, fucked up. It's just out and out greed by the ad team, and it completely fucked the advertising market for tons of news organizations that relied on such things. I mean, as described in the complaint, this is so evil it's almost stupid. Google would have been much better off simply admitting that it was taking a much larger cut of the ad revenue than cooking up this ridiculous scheme.

So, yeah, I'll be reading the answer to this amended complaint carefully to see if there's some alternative explanation, but based on what's in this complaint, this is not just the strongest antitrust claim against Google, but one that Google should very much lose. There are lots of claims out there of bad behavior by various tech companies, and much of it is misrepresented or misleading. But if this is accurate, it's incredibly damning and Google should be in serious trouble for it.

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Court Says That Travel Company Can't Tell Others How Much Southwest Flights Cost

from the c'mon dept

A few months back, we wrote about Southwest Airlines' ridiculously antagonistic legal strategy against aggregators that would scrape information on flights and prices from Southwest.com and help people find flights and prices. The case we covered was the one against Skiplagged, but it was related to a separate case against Kiwi.com. Skiplagged had argued that it didn't violate Southwest's terms of service since it wasn't scraping info from Southwest... but rather had scraped it from a different site, Kiwi.com, which in turn had scraped it from Southwest.com.

Just the fact that we're arguing over whether or not it's legal to scrape data from publicly available websites should alert you to the fact that these lawsuits are nonsense. Factual data -- such as flight routes and prices -- are not protected by any intellectual property and if you put them out there, people can (and should!) copy them and spread them elsewhere. But, unfortunately, the court ruled against Kiwi.com last fall, granting Southwest an injunction saying that Kiwi can't scrape its site for data any more. Realizing it was in trouble, it appears that Kiwi caved in and settled the lawsuit agreeing to no longer collect data on Southwest flights.

Given that, the court has now made the preliminary injunction a permanent injunction barring Kiwi and any of its employees from ever scraping data off of Southwest's site. The court takes for granted that Southwest can just say in their terms of service that you can't copy data from their website and that's a valid contract. That seems dangerously empowering for terms of service. Can I add to Techdirt's terms of service that by reading this site you agree to place any copyright-covered works you create into the public domain?

Southwest’s Terms & Conditions are a valid and enforceable contract, and Kiwi.com accepted those Terms & Conditions when it used the Southwest Website with knowledge of the Terms & Conditions;

Kiwi.com breached the Terms & Conditions when it, among other things, harvested and scraped data from the Southwest Website, published Southwest’s flight and fare schedules on Kiwi.com, used the Southwest Website for Kiwi.com’s own commercial purposes, and brokered and sold Southwest flights without permission;

Kiwi.com’s violations of the Terms & Conditions have caused Southwest to suffer irreparable harm, including lost traffic on its website, customer service burdens, operational disruptions, and reputational damage; and

After considering the balance of harms, the threatened injury to Southwest if the injunction was denied outweighed the harm to Kiwi.com because, among other things, Kiwi.com’s unauthorized sales of Southwest flights poses a significant disruption to its customer operations, and the public interest would be served if an injunction is granted because there is an expectation that parties to contracts will honor their contractual obligations.

Those last two paragraphs also seem like complete nonsense. If people find it easier to use a third party service than your own site, well, then that should mean you should work to improve your own site, not get to sue them in court. Lots of things lead to "lost traffic" on a website, including better service from a competitor. But we don't say that violates the law.

Anyway, because of this no one associated with Kiwi.com can ever "extract" any information from Southwest's website or even post data about Southwest flights on its website and I honestly don't see how that's possibly legal. Data is data. You shouldn't be able to bar a company from posting data.

IT IS HEREBY ORDERED that Kiwi.com, Inc. and Kiwi.com s.r.o., as well as their officers, agents, servants, employees, and attorneys and all other persons acting who are in active concert or participation with them, are permanently prohibited, restrained, and enjoined permanently from: (1) harvesting, extracting, or scraping information from the Southwest website, www.southwest.com, or its proprietary servers, including Southwest’s flight and fare information; (2) publishing Southwest flight or fare information on the kiwi.com website, through its mobile applications or elsewhere; (3) otherwise accessing and using Southwest’s website and data for any commercial purpose; (4) selling Southwest flights; and (5) committing any other acts in violation of Southwest’s Terms & Conditions

What an unfortunate state of an events -- but also a very clear reminder that Southwest is anti-consumer in its practices.

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Remembering The Fight Against SOPA 10 Years Later... And What It Means For Today

from the greenhouse-time dept

Register now for our online event featuring Rep. Zoe Lofgren »

As mentioned last week, today is the 10 year anniversary of the big "Internet Blackout Day" that effectively killed any forward momentum that the terrible copyright bills SOPA and PIPA had. Our new Greenhouse panel is going to be all about that, with plenty of folks who were there looking back at what happened -- and also what it means for things moving forward.

But I wanted to highlight a few things from that experience that still stick with me today. The first bit was that the fight against SOPA only worked because it was joined by a very diverse group -- including some old-timers who had fought many, many battles against the draconian and anti-public expansion of copyright law. Those old timers were useful in that they knew the system and they knew the process, and understood the political levers. But -- and this is the important part -- they had basically lost every battle on copyright going back decades and they came into the fight with a kind of resolution that this battle would be lost as well. No one ever said this, but in talking to them, the mood was very much: "We'll fight, and make a lot of noise, but in the end we'll lose, because we always lose."

What was different was that others joined in on the fight, and many of them were politically naïve, but had a really strong conviction that SOPA could not be allowed to pass. I don't think they ever thought it was even possible that the bill would become law, and because of their involvement, and the people they activated, SOPA was actually stopped.

The very first meeting that I was aware of involving a bunch of the different activists looking to stop SOPA, it was the folks at Fight for the Future (calling in from Massachusetts to a meeting held at Mozilla) who suggested having an internet blackout (though this was targeted at the markup day in November, and was kind of a test run for what happened in January). People agreed -- and some pointed to a similar kind of blackout that was done back in the 90s, but I actually thought it was an awful idea. I thought that there was no way that enough people would care or do anything to make it matter. And, my fear was that if it fizzled, it would demonstrate how weak this coalition was, and how easy it would be to keep passing even worse legislation over and over again.

I was wrong. People did get energized and all sorts of people from all different backgrounds and viewpoints came together to speak up and make it clear -- loudly -- that this was not to be.

It actually wiped away much of a fairly thick layer of cynicism I had built up in watching the politics regarding policies that impact the internet. I -- like many people -- had come to believe that most of these bills are bought and sold by lobbyists and concern about the public is left aside. The reality, as I came to learn, is that while there are many bills that are passed cynically, the power of the public to speak out loudly and make change can and will outweigh the power of special interests. But, it's quite rare that that can happen. Most bills people don't have time to deal with, and most people live lives where they can't be expected to pay attention to everything that Congress does.

And, at the same time, we've seen this same kind of energy abused, with certain folks in the media getting people wrapped up in believing that this bill or that bill is bringing about the end of America or some such nonsense. We've seen a kind of reverse playbook on this with Section 230 -- in which people are being fed nonsense (from across the media) about how Section 230 is damaging "democracy" or "harming free speech" or other kinds of nonsense.

Another key point that I learned a decade ago, was that this was never about a single battle, but it is an unending fight. I was actually in the Capitol on the day of the blackout. I had come to Washington DC to attend the State of the Net conference, where I got to debate one of the key lobbyists for Hollywood on the importance (or not) of SOPA the day before the blackout. The next day I was wandering the halls of the Capitol, meeting with Senators, Representatives, staffers, whoever, and (this part was fun) hearing phones ring off the hook as people called in to protest SOPA.

However, the very next day, while I was waiting at Dulles for my flight back home, it was announced that (without SOPA) the DOJ had seized Megaupload and (with New Zealand law enforcement) had arrested Kim Dotcom and a bunch of other executives at the company. This was interesting and disturbing for a few reasons. First, Megaupload was held up as example numbers 1, 2, and 3 as to why SOPA was needed in the first place (somewhat mirroring, years later, the DOJ seizing Backpage.com days before FOSTA was signed, even as we were told FOSTA was needed to take down Backpage). We later learned many of the questionable things done in the Megaupload case that raised serious questions about the evidence in that case.

But the underlying issue was there. Even as the DOJ's indictment against Megaupload suggested that it was interpreting perfectly reasonable business and legal decisions as criminal, it showed that stopping SOPA would not stop terrible ideas around site blocking and site removals. Indeed, various pieces of SOPA and other kinds of attempts to give the government the power to shut down websites have continued to creep into various laws around the globe. And nowadays, even some of the people who fought against SOPA are supportive of some of those ideas.

I still think the real lesson of the fight was how bringing together different people with different perspectives -- but with a common interest in having an open and free internet -- can lead to amazing things. But I do wonder where that will take us now. The coalition that came together around SOPA easily fractured soon after. The differing goals and perspectives of those involved were unlikely to keep that kind of coalition together for long anyway. And various other campaigns tried to co-opt that effort -- usually without much luck.

However, I do still wonder if the next great aspects of building a better, more open internet are going to come from the same combination of different and unexpected forces. I see the seeds of this in some of the arguments we see today, whether it's about content moderation online, or even about things like DAOs, in which you have combinations of powerful legacy forces pushing in one direction, and then a variety of users -- some feeling strongly one way, and others feeling strongly another, arguing and fighting over how the internet should be. I'm still hoping that we'll see a new and interesting coalition emerge out of all this mess -- one that possibly includes a cynical old guard who knows why things won't work, combined with a more naïve new guard who insists it must work, and somehow finds a way to make it happen.

I wrote a little about this last summer in my Eternal October post. I think that there's a path forward, building on these lessons, figuring out how to build a better future internet -- not one dominated by legacy special interests, but one in which the people on the internet are the ones who control its future and can create something wonderful.

This Techdirt Greenhouse special edition is all about the 10 year anniversary of the fight that stopped SOPA. On January 26th at 1pm PT, we'll be hosting a live discussion with Rep. Zoe Lofgren and some open roundtable discussions about the legacy of that fight. Please register to attend.

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[UPDATE] Elizabeth Warren Is NOT Cosponsoring A Bill To Repeal 230

from the what-are-you-doing-liz? dept

Big Update: It turns out that this was a clerical error on the part of a Senate staffer, and that Elizabeth Warren is not co-sponsoring this bill from Lindsey Graham to repeal Section 230. The Congress.gov site is expected to be corrected and her name removed as a co-sponsor some time soon. I am leaving the original story below for posterity, but it's good to see that Senator Warren hasn't gone completely over to the dark side on this.

Original story here:

So, just yesterday I wrote about how Democratic Senators had been shying away from co-sponsoring bills with Senator Josh Hawley. Throughout 2019 and 2020, even as Hawley's populist fascist tendencies had become abundantly clear, Democrats were willing to partner with him because he was "anti-big tech." But after January 6th of last year, suddenly Hawley was left shouting on Fox News, rather than teaming up with Democrats to sponsor bills to regulate the internet.

So... it was more than a bit of a surprise that, yesterday, Senator Elizabeth Warren's name popped up as a co-sponsor on S.2972, a bill from Republican Senators Lindsey Graham, Josh Hawley, and Marsha Blackburn, to literally repeal Section 230.

It's such a bizarre and nonsensical move. Even for Senators who support reforming Section 230, repealing it seems unlikely to accomplish what they think it will. And, even more to the point, Warren is apparently already aware of how removing Section 230 can cause significant harm. She was behind a previous bill in the Senate that was designed to study the impact of FOSTA on sex workers, after tons of people realized (way too late, and despite widespread warnings from multiple experts) that FOSTA would create massive consequences for the sex work industry (and related industries).

Over the last couple of years, ever since she lost the Presidential primary, Warren seems to have shifted further and further away from the thoughtful Senator "with a detailed plan to fix things" to one who has fully embraced pure, naked, populism for the sake of political gain. She's especially leaned hard into attacking internet companies in ways that are extremely disappointing. Even if you believe that the big internet companies (and the wider internet itself) require regulation -- an argument that is easily defensible -- she has embraced truly extreme and unconstitutional positions that generate headlines and screams of support from people who just want to punish big companies, rather than create a better world.

This latest move -- teaming up with three extremist Republican Senators -- on a bizarrely stupid and dangerous plan to flat out repeal Section 230 makes absolutely no sense at all, and I don't see how it accomplishes any of Senator Warren's stated goals. Without Section 230, you end up helping the largest internet companies cement their position, while punishing smaller competitors and killing them with legal liability for things that they didn't actually do.

This is an unfortunate and cynical move by a Senator who I had thought was better than that.

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Criss Angel Sends Ridiculous Legal Threat After Comedian Creates Parody Menu Of His Restaurant

from the that's-not-magical,-that's-being-a-censorial-asshole dept

Harrison Greenbaum is a comedian and (sometimes) magician, who noticed that the magician Criss Angel had opened a restaurant, named "CABLP" and hadn't registered the domain cablprestaurant.com. For whatever reason, the restaurant's actual website appears to be Eatblp.com, and so Greenbaum registered cablprestaurant.com and created a very obvious parody menu. I mean:

It took me way longer than it should to figure out that CABLP apparently stands for Criss Angel's Breakfast, Lunch & Pizza. Either way, this just seems like a bunch of nonsense, except that Criss Angel apparently is spending some of his very large fortune on hiring an actual intellectual property lawyer named Thomas Carulli from the law firm of KMA Zuckert to send a very bogus cease and desist letter to Greenbaum.

The letter is sillier than even I would have expected, claiming that the domain registration violates ICANN's policies.

Dear Mr. Greenbaum:

We are counsel to Criss Angel and his companies, including that which owns the CABLP Restaurant. In a social media posting you have publicly admitted that you intentionally are infringing our clients' trademarks and copyrights and are violating the Internet Corporation for Assigned Names and Numbers (ICANN) policies with which you and your domain name Registrar must comply.

Specifically, you admit that you illegally registered cablprestaurant.com as your domain name:

Criss Angel opened a restaurant this year called Cablp and forgot to register CablpRestaurant.com. I know this because, yesterday, I became the proud owner of CablpRestaurant.com.

I mean, even the most cursory glance by a lawyer of the caliber (and billing rate) of Thomas G. Carulli would note that this is not an admission of intentional infringement or "illegal" (WTF?) registration, but rather fairly obvious commentary in the form of parody, which is widely protected. And, because Carulli apparently couldn't be bothered to pull up the long history of case law on this, it is well documented that domain names making use of trademarked terms to comment on the trademark holder are very much protected. There are a bunch of cases on this (and many, many, failed attempts to use the UDRP process at WIPO to take away such domains), but a key one is Taubman v. Webfeats which makes it clear that using a trademark in a domain name for the purpose of commentary is protected speech and not infringement, so long as there is no confusion (which there clearly would not be here):

We find that Mishkoff's use of Taubman's mark in the domain name "taubmansucks.com" is purely an exhibition of Free Speech, and the Lanham Act is not invoked. And although economic damage might be an intended effect of Mishkoff's expression, the First Amendment protects critical commentary when there is no confusion as to source, even when it involves the criticism of a business. Such use is not subject to scrutiny under the Lanham Act.

There are other cases along these lines as well, and you would think that a lawyer like Carulli could have maybe asked an associate to rack up some billing time looking these up? I mean, unless the purpose was to send a bogus threat letter hoping that Greenbaum would be scared and back down.

It gets dumber.

You further admitted to setting up on your website a menu that is substantially similar to the actual CABLP menu.

If you think the menu above is "substantially similar" to the actual menu at Angel's restaurant, you may want to have your reading comprehension abilities checked carefully, because they're broken.

There's more nonsense in the letter, but it's so bad it made me pause to wonder if this were all an elaborate prank by Angel and Greenbaum together to try to let people know that Angel had actually opened a stupidly named restaurant... but, that seems too low for even Criss Angel.

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Josh Hawley Was The Democrats' Partner In Trying To Regulate Big Tech; Then The Public Realized He Was A Fascist

from the there-goes-that-plan dept

Karl recently wrote about how Congress' antitrust efforts are flailing (even with the plan to hold a hearing on Senators Klobuchar & Grassley's antitrust bill) and one reason why the efforts have stumbled may be Senator Josh Hawley's decision to really show off his fascist side.

We've been pointing out the serious problems with Hawley and his policy ideas since long before January 6th of 2021. Even though it was fairly clear from early on that his hypocritical posturing and populism were little more than a cynical attempt to get the Trumpian base to back his massive ego and ambition for a potential Presidential run, a bunch of Democrats were happy to cynically embrace Hawley because he was "anti-big tech" and willing to hate all the same people that some Democratic Senators hated as well. Of course, January 6th and Hawley's now infamous raised fist appear to have resulted in Democrats realizing that even if he hates Mark Zuckerberg too, that doesn't mean he's worth working with.

Now the Washington Post has noted that since January 6th, Democrats suddenly were no longer willing to partner with Hawley on bills that regulate "big tech," which is a bit of a problem, since he was their Republican co-sponsor on a variety of "bipartisan" legislation.

By this time last Congress in January 2020, Hawley had partnered with Democrats to lead at least eight letters on tech issues, including with Sens. Richard Blumenthal (D-Conn.), Ed Markey (D-Mass.), Mazie Hirono (D-Hawaii) and Dick Durbin (D-Ill.), then the Senate minority whip, according to a review by The Technology 202. The topics spanned from data privacy to kids’ online safety to potential risks posed by tech firms with links to China.

But a year into this Congress, during which his top issues have only gained prominence, Hawley hasn’t led any bipartisan letters on tech policy issues that his office has publicly released, according to a review. All of the new tech bills he’s introduced this past year have been either a solo or Republican-only effort. And of those four bills he co-led early last Congress, only one has been reintroduced — without him on it.

The article claims that this means that Hawley's "once-glowing prominence in the debate has faded," though I question that premise. He's still out there bashing tech in stupid, nonsensical ways. He's just doing it on Fox News and to an increasingly ignorant base who still thinks that he can magically ignore the 1st Amendment and force Twitter to allow idiots to spew nonsense. The fact that he can't actually advance any legislation is kind of meaningless here. Possibly (and this is good) it slows some of the legislation down, but Hawley has never been interested in actually passing legislation in the first place. It was always about getting his name in lights among the right people. And he got his headlines from Democrats who were willing to look the other way on Hawley's populist/fascist tendencies when it was politically convenient for them. And now Hawley doesn't need them any more to get the kind of headlines he needs.

The real thing for me is looking at just how cynical Democrats were to join up with Hawley on this prior to last January 6th. It was no secret -- certainly not in and around the Senate -- about Hawley's populist/fascist views, and his willingness to stomp all over principles or rights to feed his ambition. But they were willing to do so because it helped them out. It's good that they're apparently no longer willing to team up with Hawley to give him any kind of legislative "win" on this topic, but it remains ridiculous that they were ever willing to do so in the past -- back before Hawley was so commonly and publicly associated with the insurrection.

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Senator Blumenthal Blames TikTok... Due To A Popular And Widely Championed Science Experiment Gone Wrong

from the why-do-you-hate-science? dept

Senator Richard Blumenthal seems to fill our pages with every possible moral panic about an internet he doesn't understand, but on which he's made a name over-reacting to. This goes back over a decade, honestly, since well before he was even a Senator.

For the last few months he's been really ramping up the moral panic about TikTok, complaining about various trends on TikTok and demanding execs testify before him. The latest is that he has sent a letter to TikTok's CEO, Shou Zi Chew, demanding an explanation of how a kid in Connecticut (Blumenthal's state) was burned by messing up a science experiment called the "Whoosh Bottle Experiment." Lots of news sites -- and Blumenthal in his letter -- imply that "The Whoosh Bottle Experiment" is some sort of TikTok thing.

I write to express my grave concerns over TikTok’s failure to ensure the safety of the users on its platform. Time and again, TikTok users—including children—are seriously injured attempting to emulate videos they watch. TikTok must do better to enforce its own community guidelines and promote the safety and best interests of all users on its platform.

Last week, a twelve-year-old boy in East Haven, Connecticut, was hospitalized after suffering severe burns. He had watched a video on TikTok of the “Whoosh Bottle Experiment,” where alcohol is poured in a plastic bottle set aflame to hear a “whoosh” sound as the alcohol burns off. Because alcohol is highly flammable, its mishandling can inflict serious injury and lead to devastating consequences. TikTok knows of this danger: multiple people were injured in a previous trend to draw shapes in rubbing alcohol and ignite them.

Thing is, the Whoosh Bottle Experiment is not "a TikTok thing" it's a science thing. It's listed as a useful science experiment/demonstration for students on tons of educational resources, including the Royal Society of Chemistry, ChemEdX, STEM Learning and many, many other respected educational resources. Atlas Obscura referred to it years ago as "science's coolest fire experiment," noting dozens of science teachers doing demonstrations of the Whoosh Bottle Experiment.

Now, yes, this is the kind of experiment that should involve adult supervision, but it's not just some dumb random "TikTok challenge" and it's ridiculous to somehow hold TikTok to blame here. There are tons of science experiments that, if done wrong, could lead to injury. Is Senator Blumenthal really saying that all such educational resources teaching such science experiments need to be taken offline?

This kind of grandstanding seems to get Blumenthal headlines, which is what he seems to care about most. And the media seems to be eating up the false claim that the Whoosh Bottle Experiment is somehow "a TikTok thing." But it's not. It's a science thing and it's utterly ridiculous that Blumenthal is blaming TikTok for that -- and that the media is aiding him in this stupid, stupid moral panic. Stick to misunderstanding "finsta," Senator. You don't need to attack cool science experiments too.

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The Next Techdirt Greenhouse And Event: Remembering The SOPA Fight

from the one-decade-later dept

Register now for our online event featuring Rep. Zoe Lofgren »

Next week is the ten year anniversary of the famed "Internet Blackout Day" in which internet users, together with activists, and some internet companies, spoke up together and told Congress that passing the Stop Online Piracy Act (and the Senate Companion, the Protect IP Act), would do tremendous damage to the internet. Lots of organizations are hosting events and doing other things to commemorate that momentous occasion -- but also trying to channel that spirit towards building a better internet.

And that includes us at Techdirt. We're going to be running a new Techdirt Greenhouse series with reflections from a bunch of people who were involved in the original fight, both looking back at what happened ten years ago, but also what's happened in the intervening decade, and what it means for the internet, for activism, for tech policy, and for users of the internet going forward.

On top of that, we're going to be hosting a live (virtual) event on January 26th at 1pm PT, with a fireside chat between myself, and one of the main heroes of the stop SOPA movement: Rep. Zoe Lofgren. The event will also include breakout discussions and a chance to network and connect with others interested in tech policy and the future of the internet. Register now to join the event!

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FTC's Second Antitrust Attempt Against Facebook Gets Past The First Hurdle

from the slightly-better dept

As you'll recall, at the end of 2020, the FTC filed an antitrust case against Facebook. Last summer, the district court dismissed the case, noting that the complaint was "legally insufficient," and didn't really back up its central claims. Based on that, the FTC went back to the drawing board and filed an amended complaint last August. As we noted, the amended complaint was better than the first one -- which was heavy on narrative, but little on support to back it up. The amended complaint had more in it, though we still felt that the market definition was odd, and some of the complaint seemed to undermine other parts of it.

Either way, Facebook again asked the court to dismiss it, but this time, they're letting the case move forward. Basically, the court says that on a second pass, the FTC has actually provided at least some support of the central arguments in the complaint:

Eagerly accepting such invitation, the FTC has filed an Amended Complaint containing significant additions and revisions aimed at addressing the shortcomings identified in the Court’s prior Opinion. The core theory of the lawsuit remains essentially unchanged. The Commission continues to allege that Facebook has long had a monopoly in the market for PSN services and that it has unlawfully maintained that monopoly via two types of actions: first, by acquiring competitors and potential competitors — most notably, Instagram and WhatsApp — that it believed were well situated to eat into its monopoly; and second, by implementing and enforcing policies that prevented interoperability between Facebook and other apps that it viewed as nascent threats. The facts alleged this time around to fortify those theories, however, are far more robust and detailed than before, particularly in regard to the contours of Defendant’s alleged monopoly.

The court more or less says that Facebook may still prevail in the end -- noting that the FTC will "face a tall task down the road in proving its allegations," but, at this stage of the game, the allegations are enough to allow the case to move on to the next stage.

The court does reject one part of the FTC's case -- that Facebook's interoperability policies were anti-competitive:

The Court will not, however, allow the allegations surrounding Facebook’s interoperability policies (also known as the Platform policies) to move forward; they founder for the same fundamental reasons as explained before: Facebook abandoned the policies in 2018, and its last alleged enforcement was even further in the past.

Given the beefed up filing, this isn't a huge surprise. I still think that the FTC's case here remains surprisingly weak. I honestly expected something a lot more damning than the weird market definition and the allegations -- many of which are presented in ways that could easily be removing important context (such as reasons for actions that were not anti-competitive, but for the benefit of users).

Either way, the case is about to get a lot more expensive for Facebook, and even if the odds are that it would still prevail in the end, it might try to settle the case to avoid having to go through the process. That said, with Lina Khan leading the FTC, I'm guessing the FTC is willing to press this case forward as far as possible, even if it means an eventual loss in court...

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Meta Sues Firm For Data Scraping; Claims That Signing Up For New Accounts After Being Banned Is Equivalent Of Hacking

from the why-is-this-a-problem? dept

For years we've talked about the infamous Facebook lawsuit against Power.com. As you may recall, this was a key CFAA case against a site, Power.com, that was trying to create a social media aggregator dashboard -- in which you could login through a single interface, and access content from and post to a variety of different social media platforms. Facebook alleged that this was a form of hacking -- claiming it was "unauthorized access" to Facebook. This was even though there was no actual unauthorized access. Individual users gave Power their login credentials, so everything was completely authorized. After years of winding through the courts, unfortunately, it was decided that this was a violation of the CFAA, mainly because Facebook sent a cease & desist letter, and somehow going against that now made it "unauthorized." In my mind, this is one of the biggest reasons why Facebook has much less competition today than it otherwise might -- because it used the CFAA and cases against Power.com to create a "you can check in, but you can't check out" kind of data arrangement. Things like Power.com were an empowering system that might have made people much less reliant on Facebook -- but it was killed.

In an age now where people are increasingly talking about the importance of data portability and interoperability, something like Power.com would be a useful tool.

So, it's interesting (and a little disturbing) to see that Facebook's new corporate identity, Meta, has now sued another company for data scraping. It is notable that in this case, the defendant, Social Data Trading Ltd., is a lot less sympathetic a character than Power.com was. And -- more importantly -- Facebook is not using the CFAA this time (other cases have suggested that what Facebook got away with in the Power case it would no longer be able to get away with under that law). However, it is trying to use California's state law equivalent of the CFAA. And now matter how you look at it, it's still at least a little worrisome that Facebook (ok, whatever, Meta) believes it has a legal right to stop scraping of otherwise public data.

So first, Social Data Trading is not sympathetic. It appears to be a sketchy service in its own right, scraping data on social media users to sell "in-depth insights into the demographics and psychographics of influencers and their audiences." Meta put in place some technical blocks to try to stop the company from scraping (which seems like fair game), but SDT would then just register new domains and continue scraping. Facebook had apparently tried to stop a predecessor company to Social Data Trading called "Deep.Social," though the complaint seems to imply that SDT is just a reworking of Deep.Social.

The more difficult issue here is that part of the way that SDT did its scraping was by creating fake accounts on Facebook and Instagram, and then using those fake accounts to scrape the data. And that does bring things into a legally more complex area, but also gives Meta the route around to go after these guys without using the CFAA.

At issue is that when you create one of those accounts... you agree to the terms of service, and those terms say you can't use the site for "collecting information in an automated way." Thus, the core argument here is that it's a breach of contract case, and that the SDT folks agreed to the terms and then broke them by using their fake accounts to scrape.

Since January 2019, Defendant created and used multiple Instagram accounts and agreed to Instagram’s Terms. Defendant agreed to Instagram's Terms no later than January 30, 2019.

In addition, since September 2020, Defendant has used thousands of Instagram accounts to scrape Instagram.

Defendant breached the Terms by using unauthorized automated means to access Instagram and collect data from Meta computers without permission, including after Meta revoked Defendant’s access to its platform.

Of course, it seems to me that if this is a breach, the remedy should simply be removal of service, not anything more. But Meta claims damages "in excess of $75,000" (the minimum needed to get into federal court).

The second claim in the lawsuit seems... a lot sketchier. It claims violations of California Penal Code Section 502, which is (more or less) California's equivalent to the CFAA. While, apparently, Meta's lawyers know enough to not go to the well again on the federal CFAA, the use of the state equivalent is still quite concerning.

Beginning no later than June 2021, Defendant, without permission, knowingly accessed and otherwise used Meta’s computers, computer system, and computer network in order to (a) devise or execute any scheme or artifice to defraud and deceive, and (b) to wrongfully obtain money, property, or data, in violation of California Penal Code § 502(c)(1).

Beginning no later than June 2021, Defendant, without permission, knowingly accessed and took, copied, and made use of data from Meta’s computers, computer system, and computer network in violation of California Penal Code § 502(c)(2).

Beginning no later than June 2021, Defendant knowingly and without permission used or caused to be used Meta’s computer services in violation of California Penal Code § 502(c)(3).

Since June 2021, Defendant knowingly and without permission accessed and caused to be accessed Meta’s computers, computer systems, and/or computer networks in violation of California Penal Code § 502(c)(7). Defendant accessed Meta’s computer network after Meta disabled its Instagram accounts, blocked its domain, and sent correspondence to Defendant revoking its access.

Because Meta suffered damages and losses as a result of Defendant’s actions and continues to suffer damages and losses as a result of Defendant’s actions, Meta is entitled to compensatory damages in an amount to be determined at trial, attorney fees, any other amount of damages proven at trial, and injunctive relief under California Penal Code § 502(e)(1) and (2).

Because Defendant willfully violated California Penal Code § 502, and there is clear and convincing evidence that Defendant committed “fraud” as defined by section 3294 of the Civil Code, Meta is entitled to punitive and exemplary damages under California Penal Code § 502(e)(4).

All of this should be concerning to folks. It basically says that if you get kicked off a site and then create a new account... you could face serious consequences (and while this is a civil suit, Section 502 violations can lead to criminal liability as well). This should be cause for alarm. Yes, even if the defendant is a sketchy data operation, and even if Meta really didn't want them scraping their site, to turn around and use what is, ostensibly, a computer "hacking" law against them for setting up new accounts seems incredibly dangerous and could lead to very bad consequences.

Finally there's an "unjust enrichment" claim which also seems a bit silly -- especially for a company like Facebook, which makes so much of its money by collecting data in surreptitious ways, to argue that another firm doing that back to Facebook is somehow "unjustly" enriching itself is pretty rich.

Still, it's claim two that should raise some eyebrows, and I wish that Facebook recognized what a dangerous game its playing in trying to argue that signing up for a new account after you've been banned somehow violates an anti-hacking law.

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