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mostlysignssomeportents · 6 months ago

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Inkjump Linkdump

For the rest of May, my bestselling solarpunk utopian novel THE LOST CAUSE (2023) is available as a $2.99, DRM-free ebook!

It's the start of a long weekend and I've found myself with a backlog of links, so it's time for another linkdump – the eighteenth in the (occasional) series. Here's the previous installments:

https://pluralistic.net/tag/linkdump/

Kicking off this week's backlog is a piece of epic lawyer-snark, which is something I always love, but what makes this snark total catnip for me is that it's snark about copyfraud: false copyright claims made to censor online speech. Yes please and a second portion, thank you very much!

This starts with the Cola Corporation, a radical LA-based design store that makes lefty t-shirts, stickers and the like. Cola made a t-shirt that remixed the LA Lakers logo to read "Fuck the LAPD." In response, the LAPD's private foundation sent a nonsense copyright takedown letter. Cola's lawyer, Mike Dunford, sent them a chef's-kiss-perfect reply, just two words long: "LOL, no":

https://www.techdirt.com/2024/04/19/apparel-company-gives-perfect-response-to-lapds-nonsense-ip-threat-letter-over-fuck-the-lapd-shirt/

But that's not the lawyer snark I'm writing about today. Dunford also sent a letter to IMG Worldwide, whose lawyers sent the initial threat, demanding an explanation for this outrageous threat, which was – as the physicists say – "not even wrong":

https://www.loweringthebar.net/2024/05/lol-no-explained.html

Every part of the legal threat is dissected here, with lavish, caustic footnotes, mercilessly picking apart the legal defects, including legally actionable copyfraud under DMCA 512(f), which provides for penalties for wrongful copyright threats. To my delight, Dunford cited Lenz here, which is the infamous "Dancing Baby" case that EFF successfully litigated on behalf of Stephanie Lenz, whose video of her adorable (then-)toddler dancing to a few seconds of Prince's "Let's Go Crazy" was censored by Universal Music Group:

https://www.eff.org/cases/lenz-v-universal

Dunford's towering rage is leavened with incredulous demands for explanations: how on Earth could a lawyer knowingly send such a defective, illegal threat? Why shouldn't Dunford seek recovery of his costs from IMG and its client, the LA Police Foundation, for such lawless bullying? It is a sparkling – incandescent, even! – piece of lawyerly writing. If only all legal correspondence was this entertaining! Every 1L should study this.

Meanwhile, Cola has sold out of everything, thanks to that viral "LOL, no." initial response letter. They're taking orders for their next resupply, shipping on June 1. Gotta love that Streisand Effect!

https://www.thecolacorporation.com/

I'm generally skeptical of political activism that takes the form of buying things or refusing to do so. "Voting with your wallet" is a pretty difficult trick to pull off. After all, the people with the thickest wallets get the most votes, and generally, the monopoly party wins. But as the Cola Company's example shows, there's times when shopping can be a political act.

But that's because it's a collective act. Lots of us went and bought stuff from Cola, to send a message to the LAPD about legal bullying. That kind of collective action is hard to pull off, especially when it comes to purchase-decisions. Often, this kind of thing descends into a kind of parody of political action, where you substitute shopping for ideology. This is where Matt Bors's Mr Gotcha comes in: "ooh, you want to make things better, but you bought a product from a tainted company, I guess you're not really sincere, gotcha!"

https://thenib.com/mister-gotcha/

There's a great example of this in Zephyr Teachout's brilliant 2020 book Break 'Em Up: if you miss the pro-union demonstration at the Amazon warehouse because you spent two hours driving around looking for an indie stationer to buy the cardboard to make your protest sign rather than buying it from Amazon, Amazon wins:

https://pluralistic.net/2020/07/29/break-em-up/#break-em-up

So yeah, I'm pretty skeptical of consumerism as a framework for political activism. It's very hard to pull off an effective boycott, especially of a monopolist. But if you can pull it off, well…

Canada is one of the most monopoly-friendly countries in the world. Hell, the Competition Act doesn't even have an "abuse of dominance" standard! That's like a criminal code that doesn't have a section prohibiting "murder." (The Trudeau government has promised to fix this.)

https://www.theglobeandmail.com/opinion/editorials/article-an-overhauled-competition-act-will-light-a-fire-in-the-stolid-world-of/

There's stiff competition for Most Guillotineable Canadian Billionaire. There's the entire Irving family, who basically own the province of New Bruinswick:

https://www.canadaland.com/podcast/dynasties-2-the-irvings/

There's Ted Rogers, the trumpy billionaire telecoms monopolist, whose serial acquire-and-loot approach to media has devastated Canadian TV and publishing:

https://www.canadaland.com/podcast/canadaland-725-the-rogers-family-compact/

But then there's Galen Fucking Weston, the nepobaby who inherited the family grocery business (including Loblaw), bought out all his competitors (including Shopper's Drug Mart), and then engaged in a criminal price-fixing conspiracy to rig the price of bread, the most Les-Miz-ass crime imaginable:

https://www.blogto.com/eat_drink/2023/06/what-should-happened-galen-weston-price-fixing/

Weston has made himself the face of the family business, appearing in TV ads in a cardigan to deliver dead-eyed avuncular paeans to his sprawling empire, even as he colludes with competitors to rig the price of his workers' wages:

https://www.bloomberg.com/news/articles/2020-06-12/a-supermarket-billionaire-steps-into-trouble-over-pandemic-wages

For Canadians, Weston is the face of greedflation, the man whose nickle-and-diming knows no shame. This is the man who decided that the discount on nearly-spoiled produce would be slashed from 50% to 30%, who racked up record profits even as his prices skyrocketed.

It's impossible to overstate how loathed Galen Weston is at this moment. There's a very good episode of the excellent new podcast Lately, hosted by Canadian competition expert Vass Bednar and Katrina Onstad that gives you a sense of the national outrage:

https://www.theglobeandmail.com/podcasts/lately/article-boycotting-the-loblawpoly/

All of this has led to a national boycott of Loblaw, kicked off by members of the r/loblawsisoutofcontrol, and it's working. Writing for Jacobin, Jeremy Appel gives us a snapshot of a nation in revolt:

https://jacobin.com/2024/05/loblaw-grocery-price-gouge-boycott/

Appel points out the boycott's problems – there's lots of places, particularly in the north, where Loblaw's is the only game in town, or where the sole competitor is the equally odious Walmart. But he also talks about the beneficial effect the boycott is having for independent grocers and co-ops who deal more fairly with their suppliers and their customers.

He also platforms the boycott's call for a national system of price controls on certain staples. This is something that neoliberal economists despise, and it's always fun to watch them lose their minds when the subject is raised. Meanwhile, economists like Isabella M Weber continue to publish careful research explaining how and why price controls can work, and represent our best weapon against "seller's inflation":

https://scholarworks.umass.edu/econ_workingpaper/343/

Antimonopoly sentiment is having a minute, obviously, and the news comes at you fast. This week, the DoJ filed a lawsuit to break up Ticketmaster/Live Nation, one of the country's most notorious monopolists, who have aroused the ire of every kind of fan, but especially the Swifties (don't fuck with Swifties). In announcing the suit, DoJ Antitrust Division boss Jonathan Kanter coined the term "Ticketmaster tax" to describe the junk fees that Ticketmaster uses to pick all our pockets.

In response, Ticketmaster has mobilized its own Loblaw-like shill army, who insist that all the anti-monopoly activism is misguided populism, and "anti-business." In his BIG newsletter, Matt Stoller tears these claims apart, and provides one of the clearest explanations of how Ticketmaster rips us all off that I've ever seen, leaning heavily on Ticketmaster's own statements to their investors and the business-press:

https://www.thebignewsletter.com/p/antitrust-enforcers-to-break-up-ticketmaster

Ticketmaster has a complicated "flywheel" that it uses to corner the market on live events, mixing low-margin businesses that are deliberately kept unprofitable (to prevent competitors from gaining a foothold) in order to capture the high-margin businesses that are its real prize. All this complexity can make your eyes glaze over, and that's to Ticketmaster's benefit, keeping normies from looking too closely at how this bizarre self-licking ice-cream cone really works.

But for industry insiders, those workings are all too clear. When Rebecca Giblin and I were working on our book Chokepoint Capitalism, we talked to insiders from every corner of the entertainment-industrial complex, and there was always at least one expert who'd go on record about the scams inside everything from news monopolies to streaming video to publishing and the record industry:

https://chokepointcapitalism.com/

The sole exception was Ticketmaster/Live Nation. When we talked to club owners, promoters and other victims of TM's scam, they universally refused to go on the record. They were palpably terrified of retaliation from Ticketmaster's enforcers. They acted like mafia informants seeking witness protection. Not without reason, mind you: back when the TM monopoly was just getting started, Pearl Jam – then one of the most powerful acts in American music – took a stand against them. Ticketmaster destroyed them. That was when TM was a mere hatchling, with a bare fraction of the terrifying power it wields today.

TM is a great example of the problem with boycotts. If a club or an act refuses to work with TM/LN, they're destroyed. If a fan refuses to buy tickets from TM or see a Live Nation show, they basically can't go to any shows. The TM monopoly isn't a problem of bad individual choices – it's a systemic problem that needs a systemic response.

That's what makes antitrust responses so timely. Federal enforcers have wide-ranging powers, and can seek remedies that consumerism can never attain – there's no way a boycott could result in a breakup of Ticketmaster/Live Nation, but a DoJ lawsuit can absolutely get there.

Every federal agency has wide-ranging antimonopoly powers at its disposal. These are laid out very well in Tim Wu's 2020 White House Executive Order on competition, which identifies 72 ways the agencies can act against monopoly without having to wait for Congress:

https://pluralistic.net/2021/08/13/post-bork-era/#manne-down

But of course, the majority of antimonopoly power is vested in the FTC, the agency created to police corporate power. Section 5 of the FTC Act grants the agency the power to act to prevent "unfair and deceptive methods of competition":

https://pluralistic.net/2023/01/10/the-courage-to-govern/#whos-in-charge

This clause has lain largely dormant since the Reagan era, but FTC chair Lina Khan has revived it, using it to create muscular privacy rights for Americans, and to ban noncompete agreements that bind American workers to dead-end jobs:

https://pluralistic.net/2024/04/25/capri-v-tapestry/#aiming-at-dollars-not-men

The FTC's power to ban activity because it's "unfair and deceptive" is exciting, because it promises American internet users a way to solve their problems beyond copyright law. Copyright law is basically the only law that survived the digital transition, even as privacy, labor and consumer protection rights went into hibernation. The last time Congress gave us a federal consumer privacy law was 1988, and it's a law that bans video store clerks from telling the newspapers which VHS cassettes you rented:

https://en.wikipedia.org/wiki/Video_Privacy_Protection_Act

That's left internet users desperately trying to contort copyright to solve every problem they have – like someone trying to build a house using nothing but chainsaw. For example, I once found someone impersonating me on a dating site, luring strangers into private spaces. Alarmed, I contacted the dating site, who told me that their only fix for this was for me to file a copyright claim against the impersonator to make them remove the profile photo. Now, that photo was Creative Commons licensed, so any takedown notice would have been a "LOL, no." grade act of copyfraud:

https://pluralistic.net/2023/10/21/the-internets-original-sin/

The unsuitability of copyright for solving complex labor and privacy problems hasn't stopped people who experience these problems from trying to use copyright to solve them. They've got nothing else, after all.

That's why everyone who's worried about the absolutely legitimate and urgent concerns over AI and labor and privacy has latched onto copyright as the best tool for resolving these questions, despite copyright's total unsuitability for this purpose, and the strong likelihood that this will make these problems worse:

https://pluralistic.net/2024/05/13/spooky-action-at-a-close-up/#invisible-hand

Enter FTC Chair Lina Khan, who has just announced that her agency will be reviewing AI model training as an "unfair and deceptive method of competition":

https://thehill.com/policy/technology/4682461-ftc-chair-ai-models-could-violate-antitrust-laws/

If the agency can establish this fact, they will have sweeping powers to craft rules prohibiting the destructive and unfair uses of AI, without endangering beneficial activities like scraping, mathematical analysis, and the creation of automated systems that help with everything from adding archival metadata to exonerating wrongly convicted people rotting in prison:

https://hrdag.org/tech-notes/large-language-models-IPNO.html

I love this so much. Khan's announcement accomplishes the seemingly impossible: affirming that there are real problems and insisting that we employ tactics that can actually fix those problems, rather than just doing something because inaction is so frustrating.

That's something we could use a lot more of, especially in platform regulation. The other big tech news about Big Tech last week was the progress of a bill that would repeal Section 230 of the Communications Decency Act at the end of 2025, without any plans to replace it with something else.

Section 230 is the most maligned, least understood internet law, and that's saying something:

https://www.techdirt.com/2020/06/23/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act/

Its critics wrongly accuse the law – which makes internet users liable for bad speech acts, not the platforms that carry that speech – of being a gift to Big Tech. That's totally wrong. Without Section 230, platforms could be named to lawsuits arising from their users' actions. We know how that would play out.

Back in 2018, Congress took a big chunk out of 230 when they passed SESTA/FOSTA, a law that makes platforms liable for any sex trafficking that is facilitated by their platforms. Now, this may sound like a narrowly targeted, beneficial law that aims at a deplorable, unconscionable crime. But here's how it played out: the platforms decided that it was too much trouble to distinguish sex trafficking from any sex-work, including consensual sex work and adjacent activities. The result? Consensual sex-work became infinitely more dangerous and precarious, while trafficking was largely unaffected:

https://www.gao.gov/assets/gao-21-385.pdf

Eliminating 230 would be incredibly reckless under any circumstances, but after the SESTA/FOSTA experience, it's unforgivable. The Big Tech platforms will greet this development by indiscriminately wiping out any kind of controversial speech from marginalized groups (think #MeToo or Black Lives Matter). Meanwhile, the rich and powerful will get a new tool – far more powerful than copyfraud – to make inconvenient speech disappear. The war-criminals, rapists, murderers and rip-off artists who currently make do with bogus copyright claims to "manage their reputations" will be able to use pretextual legal threats to make their critics just disappear:

https://www.qurium.org/forensics/dark-ops-undercovered-episode-i-eliminalia/

In a post-230 world, Cola Corporation's lawyers wouldn't get a chance to reply to the LAPD's bullying lawyers – those lawyers would send their letter to Cola's hosting provider, who would weigh the possibility of being named in a lawsuit against the small-dollar monthly payment they get from Cola, and poof, no more Cola. The legal bullies could do the same for Cola's email provider, their payment processor, their anti-DoS provider.

This week on EFF's Deeplinks blog, I published a piece making the connection between abolishing Section 230 and reinforcing Big Tech monopolies:

https://www.eff.org/deeplinks/2024/05/wanna-make-big-tech-monopolies-even-worse-kill-section-230

The Big Tech platforms really do suck, and the solution to their systemic, persistent moderation failures won't come from making them liable for users' speech. The platforms have correctly assessed that they alone have the legal and moderation staff to do the kinds of mass-deletions of controversial speech that could survive a post-230 world. That's why tech billionaires like Mark Zuckerberg love the idea of getting rid of 230:

https://www.eff.org/deeplinks/2021/03/facebooks-pitch-congress-section-230-me-not-thee

But for small tech providers – individuals, co-ops, nonprofits and startups that host fediverse servers, standalone group chats and BBSes – a post-230 world is a mass-extinction event. Ever had a friend demand that you take sides in an interpersonal dispute ("if you invite her to the party, I'm not coming!").

Imagine if your refusal to take sides in a dispute among your friends – and their friends, and their friends – could result in you being named to a suit that could cost hundreds of thousands of dollars to settle:

https://www.engine.is/news/primer/section230costs

It's one thing to hope for a more humane internet run by people who want to make hospitable forums for online communities to form. It's another to ask them to take on an uninsurable risk that could result in the loss of their home, their retirement account, and their life's savings.

A post-230 world is one in which Big Tech must delete first and ask questions later. Yes, Big Tech platforms have many sins to answer for, but making them jointly liable for their users' speech will flush out treasure-hunters seeking a quick settlement and a quick buck.

Again, this isn't speculative – it's inevitable. Consider FTX: yes, the disgraced cryptocurrency exchange was a festering hive of fraud – but there's no way that fraud added up to the 23.6 quintillion dollars in claims that have been laid against it:

https://cdn.arstechnica.net/wp-content/uploads/2024/03/US-v-SBF-Alameda-Research-Victim-Impact-Statement-3-20-2024.pdf

Without 230, Big Tech will shut down anything controversial – and small tech will disappear. It's the worst of all possible worlds, a gift to tech monopolists and the bullies and crooks who have turned our online communities into shooting galleries.

One of the reasons I love working for EFF is our ability to propose technologically informed, sound policy solutions to the very real problems that tech creates, such as our work on interoperability as a way to make it easier for users to escape Big Tech:

https://www.eff.org/interoperablefacebook

Every year, EFF recognizes the best, bravest and brightest contributors to a better internet and a better technological future, with our annual EFF Awards. Nominations just opened for this year's awards – if you know someone who fits the bill, here's the form:

https://www.eff.org/nominations-open-2024-eff-awards

It's nearly time for me to sign off on this weekend's linkdump. For one thing, I have to vacate my backyard hammock, because we've got contractors who need to access the side of the house to install our brand new heat-pump (one of two things I'm purchasing with my last lump-sum book advance – the other is corrective cataract surgery that will give me lifelong, perfect vision).

I've been lusting after a heat-pump for years, and they just keep getting better – though you might not know it, thanks to the fossil-fuel industry disinfo campaign that insists that these unbelievably cool gadgets don't work. This week in Wired, Matt Simon offers a comprehensive debunking of this nonsense, and on the way, explains the nearly magical technology that allows a heat pump to heat a midwestern home in the dead of winter:

https://www.wired.com/story/myth-heat-pumps-cold-weather-freezing-subzero/

As heat pumps become more common, their applications will continue to proliferate. On Bloomberg, Feargus O'Sullivan describes one such application: the Japanese yokushitsu kansouki – a sealed bathroom with its own heat-pump that can perfectly dry all your clothes while you're out at work:

https://www.bloomberg.com/news/articles/2024-05-22/laundry-lessons-from-japanese-bathroom-technology

This is amazing stuff – it uses less energy than a clothes-dryer, leaves your clothes wrinkle-free, prevents the rapid deterioration caused by high heat and mechanical agitation, and prevents the microfiber pollution that lowers our air-quality.

This is the most solarpunk thing I've read all week, and it makes me insanely jealous of Japanese people. The second-most solarpunk thing I've read this week came from The New Republic, where Aaron Regunberg and Donald Braman discuss the possibility of using civil asset forfeiture laws – lately expanded to farcical levels by the Supreme Court in Culley – to force the fossil fuel industry to pay for the energy transition:

https://newrepublic.com/article/181721/fossil-fuels-civil-forefeiture-pipeline-climate

They point out that the fossil fuel industry has committed a string of undisputed crimes, including fraud, and that the Supremes' new standard for asset forfeiture could comfortably accommodate state AGs and other enforcers who seek billions from Big Oil on this basis. Of course, Big Oil has more resources to fight civil asset forfeiture than the median disputant in these cases ("a low- or moderate-income person of color [with] a suspected connection to drugs"). But it's an exciting idea!

All right, the heat-pump guys really need me to vacate the hammock, so here's one last quickie for you: Barath Raghavan and Bruce Schneier's new paper, "Seeing Like a Data Structure":

https://www.belfercenter.org/publication/seeing-data-structure

This is a masterful riff on James C Scott's classic Seeing Like a State, and it describes how digitalization forces us into computable categories, and counts the real costs of doing so. It's a gnarly and thoughtful piece, and it's been on my mind continuously since Schneier sent it to me yesterday. Something suitably chewy for you to masticate over the long weekend!

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2024/05/25/anthology/#lol-no

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