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mostlysignssomeportents · 2 years

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Being good at your job is praxis

You know the joke.

Office manager: "$75 just to kick the photocopier?"

Photocopier technician: "No, it's $5 to kick the photocopier and $70 to know where to kick it."

The trustbusters in the Biden administration know precisely where to kick the photocopier, and they're kicking the shit out of it. You love to see it.

Last July, the Biden admin published an Executive Order enumerating 72 actions that administrative agencies could take without any further action from Congress - dormant powers that the administration already had, but wasn't using:

https://www.thenation.com/article/economy/biden-monopoly-executive-order/

This memo was full of deep cuts, like the Competition in Contracting Act of 1984, Northern Pac. Ry Co v US (1958), the Bank Merger Act and the Bank Holding Company Act of 1956, and the Packers and Stockyards Act of 1921:

https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/

The memo opened with the kind of soaring rhetoric that I absolutely dote on, a declaration of the end of Reagonomics and its embrace of monopoly:

https://www.eff.org/deeplinks/2021/08/party-its-1979-og-antitrust-back-baby

But the memo didn't just offer red meat to tube-feeding activist cranks like me: it also set out 72 specific, technical activities that would make profound, material changes in the economy and improvements to the lives of every person in America, and then the administration executed every one of those actions:

https://www.davispolk.com/insights/client-update/president-bidens-executive-order-competition-one-year-later

They knew where to kick the photocopier and boy did they kick it - hard.

The White House action has Tim Wu's fingerprints all over it. He's the brilliant, driven law professor who's gone to work as Biden's tech antitrust czar. But Wu isn't alone: he's part of a trio of appointees who are all expert photocopier kickers. There's Jonathan Kanter at the DoJ and Lina Khan at the FTC.

Khan is a model of administrative competence and ideological coherence. Her tenure has included lots of soaring rhetoric to buoy the spirits of people like me:

https://pluralistic.net/2022/05/09/rest-in-piss-robert-bork/#harmful-dominance

But it's also included lots of extremely skillful ju-jitsu against the system, using long-neglected leverage points to Get Shit Done, rather than just grandstanding or demanding that Congress take action. Here's the FTC's latest expert kick at the photocopier: action on Right to Repair that exercises existing authority:

https://www.vice.com/en/article/k7bxaa/ftc-energy-rules-right-to-repair

The Right to Repair fight is a glaring example of democratic dysfunction. Americans broadly and strongly support the right to fix their own stuff, or to take their stuff to the repair depot of their choice. How broadly? Well, both times that the question has been on the Massachusetts ballot, there was massive participation and the measures passed with ~80% majorities:

https://pluralistic.net/2021/05/26/nixing-the-fix/#r2r

But despite this, state-level attempts to pass R2R bills have been almost entirely crushed by a coalition of monopolists, led by Apple, including John Deere, GM, Wahl Shavers, Microsoft, Google, and many other giant corporations who want the power to tell you your property is beyond repair and must be condemned to an e-waste dump:

https://doctorow.medium.com/apples-cement-overshoes-329856288d13

Right to Repair is a case study for the proposition that "ordinary citizens… get the policies they favor, but only because those policies happen also to be preferred by the economically-elite citizens who wield the actual influence."

https://scholar.princeton.edu/sites/default/files/mgilens/files/gilens_and_page_2014_-testing_theories_of_american_politics.doc.pdf

Enter the photocopier kickers, wearing boots. The same month that the White House dropped is massive antitrust executive order, it also published an executive order on Right to Repair, including electronics repair:

https://pluralistic.net/2021/07/10/unnixing-the-fix/#r2r-plus-plus

The EO built on the evidence compiled through the FTC's "Nixing the Fix" report:

https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-congress-repair-restrictions/nixing_the_fix_report_final_5521_630pm-508_002.pdf

But it also identified that the FTC already had the power to do Right to Repair, in its existing Congressional authorization:

https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/09/fact-sheet-executive-order-on-promoting-competition-in-the-american-economy/

The Biden antitrust strategy is powerful because it recognizes that every administrative agency has powers that can be brought to bear to slow down the anticompetitive flywheel that has allowed giant corporations to extract monopoly profits and then launder them into pro-monopoly policies.

Which brings me to today's news: the FTC has carefully reviewed the powers it has under its existing Energy Labeling Rule (you know, the rule that produces those Energystar stickers on appliances) and concluded that it can also force companies to publish repair manuals under this rule:

https://www.ftc.gov/news-events/news/press-releases/2022/10/federal-trade-commission-seeks-public-comment-initiative-reduce-energy-costs-strengthen-right-repair

As USPIRG's Nathan Proctor told Motherboard’s Matthew Gault, "When Congress passed energy conservation policies decades ago, it included the ability to require Right to Repair access. While that provision has gone unnoticed for too long, it’s not surprising it was written that way."

https://www.vice.com/en/article/k7bxaa/ftc-energy-rules-right-to-repair

The FTC is now planning to exercise that long dormant authority in a game-changing way - to kick the photocopier really, really well. It is seeking public comment on "whether lack of access to repair instructions for covered products is an existing problem for consumers; whether providing such information would assist consumers in their purchasing decisions or product use; whether providing such information would be unduly burdensome to manufacturers; and any other relevant issues"

https://www.ftc.gov/system/files/ftc_gov/pdf/R611004EnergyLabelingANPR.pdf

The Trump years were brutal. Every time we turned around, some Trumpy archvillain was twirling his mustache and announcing an evil plot. Yet so many of these turned out to be nothingburgers - not because they were sincere in their intentions, but because they lacked administrative competence.

Trump embodied administrative incompetence. He was very good at commanding the news cycle, and very good at riling up his base, but he had no idea where to kick the photocopier, and every expert photocopier kicker that Trump hired got immediately fired, because they would insist that Getting Shit Done required patience and precision, not a deluge of chaotic governance-by-tweeting.

To the extent that Trumpland Got Shit Done - packing the courts, handing out trillions in tax gifts to the ultra-rich - it was in spite of Trump and his trumpies, and because of the administratively competent wing of the party: McConnell, Romney, et al. In the GOP, "establishment" is a slur meaning "competent."

This isn't to say that Trump wasn't dangerous - he absolutely was. But it does militate for an understanding of politics that pays close attention to competence as well as virtue or wickedness.

It's one of the things that was very exciting about the Elizabeth Warren campaign - those long-ass policy documents she dropped were eye-wateringly detailed photocopier-kicking manuals for the US government.

Biden himself isn't much of a photocopier kicker. He's good at gladhanding, but the photocopier kickers in his administration represent a triumph of the party's progressive wing. And therein lies a key difference between the parties: in the GOP, the competent are the establishment; in the Democrats, the establishment are the ones who can't or won't act, and the progressives have got their boots on and are ready to kick.

Image: Temple University Libraries (modified) https://www.flickr.com/photos/tulpics/4882641645/

CC BY 2.0: https://creativecommons.org/licenses/by/2.0/

[Image ID: A photocopier in an office copy room; a silhouetted figure is dealing a flying kick to it.]

#pluralistic

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mariacallous · 7 months

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On September 12, 2023, the most significant U.S. technology antitrust trial in decades opened in a Washington, D.C. federal district court. In U.S. v. Google, the U.S. Department of Justice (DOJ) and 38 state and territory attorneys general allege that Google has violated Section 2 of the Sherman Act, an antitrust law originally enacted in 1890.

The Sherman Act prohibits using exclusionary practices to maintain a monopoly. The DOJ and state attorneys general assert that Google has done just that in relation to certain internet search services. As often occurs, the case was narrowed in the months leading up to the start of the trial. Here is an overview of some of the key questions being addressed at the trial, which is expected to last several months.

Are Google’s browser agreements exclusive?

Google has entered into browser agreements with Apple and Mozilla under which Google is the default search engine for web browsers provided by those companies. For example, with respect to Apple, this means that a person who purchases a new iPhone, launches the Safari web browser, and enters a query into the search bar will, by default, receive search results from Google. In return for making Google the default search engine, the web browser providers receive a portion of advertising revenue arising from those searches.

A key question is whether these agreements are exclusive. Google asserts that they are not, arguing that the default settings can easily be changed by consumers who wish to use a non-Google search engine. The DOJ responds, “Even where search users might want to switch defaults, the effort and knowledge required to make that change biases them towards sticking with the default option.”

In an August 2023 ruling regarding summary judgement motions, Judge Amit Mehta wrote that “It is best to await a trial to determine whether, as a matter of actual market reality, Google’s position as the default search engine across multiple browsers is a form of exclusionary conduct.” In making this inquiry, the court will consider not only whether the browser agreements are actually exclusive, but also whether they are de facto exclusive. An agreement that lacks a formal exclusivity provision can nonetheless function in a de facto exclusive manner due to contextual factors, such as market dynamics and incentives.

A related question is whether any exclusivity associated with the browser agreements is simply the result of market competition. Google argues that it won the competition to be the default search engine for browsers made by Apple and Mozilla “on the merits as established and judged by its customers, not through anticompetitive or exclusionary conduct.” The DOJ counters this by stating that the “existence of multiple bidders does not transform an anticompetitive agreement into a permissible one.”

Are Google’s agreements regarding Android devices exclusive?

Android is the world’s most widely used mobile operating system, with a global market share as of December 2022 of about 72%, versus 27% for iOS. In the United States, the Android market share as of December 2022 was about 44%, compared with about 56% for iOS. Google has agreements with Samsung and other mobile device manufacturers of Android-based phones to make Google the default search engine on those devices. Google also has similar agreements with cellular wireless network providers that sell Android phones.

In relation to the Android antitrust question, Google enters into two types of agreements: Mobile Application Distribution Agreements (MADAs) and Revenue Share Agreements (RSAs). A MADA is a nonexclusive agreement allowing an Android device maker to preinstall a set of Google apps, including Google search and the Chrome browser. Since a MADA is nonexclusive, it permits a device maker to also preinstall non-Google search apps. RSAs introduce an additional wrinkle: Device makers and wireless carriers that enter into an RSA must make Google the exclusive, preinstalled search app on the device, and are thus prohibited from preinstalling any competing search app.

The revenue share that accompanies an RSA creates a strong economic incentive. And, because an RSA is only available to device makers that also have signed a MADA, the plaintiffs argue that this linkage has the effect of turning MADA into an exclusive contract. Google responds by underscoring that MADAs are nonexclusive and that device makers and wireless carriers are free to choose—or decline—to enter into the exclusive relationship that accompanies signing an RSA.

If the agreements are exclusive, how much of the market do they foreclose?

A finding that the Google browser and/or Android agreements are actually or de facto exclusive would not necessarily mean Google is violating antitrust laws. As the D.C. Circuit (which sets precedent for the district court hearing U.S. v. Google) explained in a 2001 decision, “Permitting an antitrust action to proceed any time a firm enters into an exclusive deal would both discourage a presumptively legitimate business practice and encourage costly antitrust actions. Because an exclusive deal affecting a small fraction of a market clearly cannot have the requisite harmful effect upon competition, the requirement of a significant degree of foreclosure serves a useful screening function.”

A key question that the U.S. v. Google trial will therefore explore is: To the extent that the browser and/or Android agreements are exclusive, is the resulting market foreclosure “substantial”? Unsurprisingly, the parties disagree, with the DOJ asserting that the answer is yes and Google asserting the opposite. The parties also disagree on the methodology that should be used in obtaining the answer.

What is the relevant market?

Examining alleged anticompetitive behavior requires identifying the relevant market. With respect to internet users (as distinct from advertisers), the DOJ argues that “general search services” is the relevant market and that offerings in that market include Google search and Bing. Notably, the DOJ specifically excludes from this category “specialized search services or other websites that are limited to specific topics, such as discounted hotels or airline fares,” writing that “Yelp can find you a pizzeria but is no help when it comes to the symptoms of strep throat.”

Google asserts that the relevant market for search is broader, arguing that “by defining the relevant market to include only general search engines, Plaintiffs distort the commercial reality that users routinely substitute other search providers for general search engines—such as Amazon when they shop, or Expedia when they travel—and thereby improperly exclude many of Google’s strongest competitors from the relevant market.” Thus, the trial will explore the competing narratives regarding the definition of the relevant market for internet search and, separately, for search advertising.

A landmark antitrust trial

In addition to the above, the court will also consider an allegation by the state and territory attorneys general (but not the United States) that a Google marketing tool called Search Ads 360 is used in anticompetitive ways in relation to advertising. But the specifics of the questions to be addressed at trial aside, U.S. v Google has enormous implications for the technology sector. It is the first major U.S. trial to examine antitrust in the context of the contemporary Big Tech landscape.

The ruling from the current district court trial will not be the last word, as the non-prevailing party will almost certainly appeal to the D.C. Circuit. And regardless of the eventual outcome, there will be calls for change. A Google victory would lead to assertions that the technology ecosystem has outpaced antitrust law. And a DOJ victory would lead to assertions that antitrust law is being applied and interpreted far too broadly.

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ailtrahq · 7 months

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The heart of the DOJ’s argument lies in the assertion that evidence regarding the current value of Bankman-Fried’s investments, particularly his stake in Anthropic, is irrelevant to the charges against him. The legal saga surrounding Sam Bankman-Fried (SBF), the founder of the crypto exchange FTX, continues to unfold as the US Department of Justice (DOJ) seeks to exclude specific evidence from his defense. The request aims to preclude the defendant from introducing evidence or argument related to the current value of certain investments made by Bankman-Fried, particularly his investment in Anthropic, an Artificial Intelligence startup. Background of the DOJ Request on Anthropic Sam Bankman-Fried is facing charges related to wire fraud, specifically the misappropriation of funds from FTX customers to finance various investments, including the aforementioned investment in Anthropic. The DOJ alleges that these funds were stolen from FTX customers, forming the basis of their case against the defendant. Anthropic, the AI startup in question, gained public attention by announcing plans to raise additional capital from investors like Amazon.com Inc (NASDAQ: AMZN) and Google. Reports suggest that this new investment could potentially value the company between $20 billion and $30 billion, which may significantly impact the value of Bankman-Fried’s initial investment. Meanwhile, FTX took a stake in Anthropic that was worth $500 million when it filed for bankruptcy nearly a year ago. However, the bankruptcy trustee for FTX has not yet sold FTX’s stake in Anthropic. This delay in selling the stake has now become a matter of interest and speculation, especially among FTX creditors who are eagerly anticipating any potential recovery from the bankruptcy proceedings. The DOJ’s Argument The heart of the DOJ’s argument lies in the assertion that evidence regarding the current value of Bankman-Fried’s investments, particularly his stake in Anthropic, is irrelevant to the charges against him. The government claims that even if the value of these investments has increased significantly, it does not mitigate the alleged fraudulent activities undertaken by Bankman-Fried during the course of his tenure at FTX. The government cites legal precedents, such as United States v. Sindona and United States v. Males, to emphasize that the immediate intent to misapply and defraud is the primary focus in such cases. The prosecutors, therefore, highlighted that belief in future profitability or intent to repay misappropriated funds is irrelevant. Furthermore, the DOJ contends that evidence of the current value of Anthropic shares, or any other investments, could mislead the jury and create undue confusion. Valuations in venture capital investments are often speculative and subject to change, as evidenced by the example of FTX itself. This could potentially lead to a lengthy and unnecessary mini-trial regarding the value of assets available through bankruptcy proceedings, which is unrelated to the central issues the jury needs to decide. Lastly, the DOJ argues that introducing such evidence could encourage a verdict based on an improper basis. While the government acknowledges that Bankman-Fried’s misappropriation led to FTX’s bankruptcy, it has not offered evidence of how much money victims will ultimately lose. Therefore, introducing evidence of the current value of investments would serve no purpose other than to prejudice the proceedings. Thank you! You have successfully joined our subscriber list.

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chrisshort · 8 months

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hackernewsrobot · 8 months

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U.S. v. Google

https://www.wsj.com/tech/google-antitrust-trial-doj-search-91d32f8f

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internautas · 9 months

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[ad_1] En un avance significativo en dos demandas antimonopolio contra Google, el Tribunal de Distrito de EE. UU. para el Distrito de Columbia ha desestimado algunos reclamos y ha permitido que otros procedan a juicio. Las demandas, presentadas por el Departamento de Justicia de EE. UU. (DOJ) y los fiscales generales de 38 estados, acusan a Google de prácticas anticompetitivas que violan la Sección 2 de la Ley Sherman. Google declaró una victoria parcial, ya que el tribunal desestimó las acusaciones relacionadas con el diseño de la Búsqueda de Google. Kent Walker, presidente de asuntos globales y director legal de Google, respondió a la decisión del tribunal: "Agradecemos la cuidadosa consideración y decisión del Tribunal de desestimar las reclamaciones relacionadas con el diseño de la Búsqueda de Google... Esperamos poder demostrar en el juicio que la promoción y distribución de nuestros servicios es tanto legal como favorable a la competencia". Continuando a Juicio El centro de la batalla antimonopolio son los acuerdos de distribución de Google que fijan su motor de búsqueda como predeterminado en navegadores como Safari de Apple y dispositivos Android. Los fiscales generales alegan que los acuerdos de Google perjudican a los proveedores verticales especializados (SVP) de dos maneras clave: Primero, alegan que Google ha limitado la visibilidad de los SVP en la página de resultados de su motor de búsqueda, lo que dificulta que los usuarios encuentren y accedan a su contenido. En segundo lugar, Google ha exigido a los SVP que proporcionen sus datos y contenido a Google en condiciones que no son menos favorables que las que ofrece Google a otras empresas. Esto pone a los SVP en desventaja en comparación con los socios de Google. En el informe de 60 páginas del juez de distrito Amit Mehta, dictaminó que había suficientes desacuerdos de hecho sobre si esta práctica es anticompetitiva y excluyente. Él dice que los problemas deben ir a juicio para un examen más detenido. Sobre las afirmaciones de que Google desfavorece los sitios de búsqueda especializados, Mehta escribe: "En pocas palabras, no hay evidencia registrada de daño anticompetitivo en los mercados relevantes como resultado del trato de Google a los SVP". Las acusaciones de que Google desvió los dólares de la publicidad de búsqueda restringiendo el acceso de los competidores a Android permanecieron intactas. Una mirada más cercana a las acusaciones El tribunal rechazó el intento de Google de evitar un juicio por las alegaciones centrales. Estos se centran en los contratos exclusivos de Google con desarrolladores de navegadores web y fabricantes de equipos originales (OEM) de dispositivos Android. El Departamento de Justicia y los fiscales generales estatales sostienen que los acuerdos de Google con los desarrolladores de navegadores web, como Apple y Mozilla, y los fabricantes de dispositivos Android garantizan que Google sea el motor de búsqueda predeterminado en varios dispositivos. Argumentan que esta práctica sofoca la competencia, una afirmación que Google niega. Los demandantes argumentan que el estado predeterminado afecta el uso de un motor de búsqueda, mientras que Google sostiene que los usuarios pueden cambiar el motor de búsqueda predeterminado en sus dispositivos. El juez Mehta dictaminó que las disputas sobre los hechos de estas alegaciones requieren un juicio para resolverse. Mirando hacia el futuro El resultado de estos procedimientos podría remodelar el mercado de la publicidad digital, ya que estas demandas desafían el dominio monopolístico que tiene Google en la búsqueda y la publicidad en línea. La decisión del tribunal de proceder a juicio marca un hito en la batalla legal en curso por el dominio del mercado de Google. Imagen destacada: Sergei Elagin/Shutterstock window.addEventListener( 'load2', function() if( !window.ss_u ) !function(f,b,e,v,n,t,s) if(f.fbq)return;n=f.fbq=function()n.callMethod? n.callMethod.apply(n,arguments):n.queue.push(arguments); if(!f._fbq)f._fbq=n;n.push=n;n.loaded=!0;n.version='2.0'; n.queue=[];t=b.createElement(e);t.async=!0; t.src=v;s=b.getElementsByTagName(e)[0]; s.parentNode.insertBefore(t,s)(window, document,'script', 'https://connect.facebook.net/en_US/fbevents.js'); if( typeof window.sopp != "undefined" && window.sopp === 'yes' ) fbq('dataProcessingOptions', ['LDU'], 1, 1000); console.log('load_px'); fbq('init', '1321385257908563'); fbq('track', 'PageView'); fbq('trackSingle', '1321385257908563', 'ViewContent', content_name: 'google-on-trial-antitrust-allegations-advance', content_category: 'news seo' ); );

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obsessiveviewer · 2 years

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080 - Movie - Carrie (1976)

In this episode, Tiny and I review Brian De Palma's 1976 film adaptation of Carrie and discuss a couple of recent Stephen King related news.

Timestamps

Show Start – 00:42

News and Check-ins - 04:17

Carrie (1976) – 14:50

Non-Spoiler - 18:43

Spoiler - 54:22

Outro/Patreon Clip – 1:19:09

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Matt’s Top 19 King Novels

11/22/63

Wizard and Glass (The Dark Tower IV)

Pet Sematary

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The Dark Tower (The Dark Tower VII)

The Stand

The Waste Lands (The Dark Tower III)

Under the Dome

Billy Summers

Christine

Doctor Sleep

Wolves of the Calla (The Dark Tower V)

The Dead Zone

The Gunslinger (The Dark Tower I)

Revival

End of Watch

Matt’s Top 19 King Adaptations

The Shawshank Redemption (1994)

The Shining (1980)

It (2017)

11.22.63 (2016) - Miniseries

The Mist (2007)

Doctor Sleep (2019)

Misery (1990)

Castle Rock (2018) - Series

Creepshow (1982)

Stand by Me (1986)

Gerald's Game (2017)

Christine (1983)

Pet Sematary (1989)

The Dead Zone (1983)

Cujo (1983)

Carrie (1976)

The Shining (1997) - Miniseries

In the Tall Grass (2019)

Sometimes They Come Back (1991)

Tiny’s Top 19 King Novels

The Dark Tower (The Dark Tower VII)

Misery

The Stand

The Shining

The Drawing of the Three (The Dark Tower II)

The Gunslinger (The Dark Tower I)

Christine

Wizard and Glass (The Dark Tower IV)

Cujo

The Dead Zone

Mr. Mercedes

Gerald’s Game

Pet Sematary

Wolves of the Calla (The Dark Tower V)

Salem’s Lot

Under the Dome

11/22/63

The Waste Lands (The Dark Tower III)

Tiny’s Top 19 King Adaptations

Doctor Sleep (2019)

The Shawshank Redemption (1994)

It (2017)

Christine (1983)

The Shining (1980)

Stand By Me (1986)

The Mist (2007)

Misery (1990)

Creepshow (1982)

The Green Mile (1999)

Apt Pupil (1998)

Geralds Game (2017)

The Outsider (2019) - Miniseries

The Stand (1994)

The Shining (1997) - Miniseries

Lisey’s Story (2021) - Miniseries

1922 (2017)

11/22/63 (2016) - Miniseries

It (1990) - Miniseries

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unitcougar2 · 2 years

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Big Banks Wish To Undertake Bitcoin Tech For The Financial Sector

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#bitcoin

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lastsonlost · 4 years

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The star begins a libel trial against a U.K. tabloid that called him a "wife beater." No matter the verdict, he's destined to lose.

If there's a single word to describe Johnny Depp's status at the moment, I'd go with zugzwang, which chess aficionados know to be the moment when a player basically gets cornered into making a move that will inevitably lead to an even more inferior position. On Tuesday, the star actor appeared in a London courtroom to take on the U.K. publisher of The Sun for characterizing him as a "wife beater" in the print edition of an April 27, 2018, online article. Unfortunately for Depp, it seems to be a defamation trial that's a no-win situation.

Depp appears to think that success is achievable at a proceeding that will last several weeks and feature all sorts of inside details about his life plus celebrity friends including Paul Bettany and Winona Ryder. Depp is claiming that during his tumultuous marriage to Amber Heard between 2015 through 2017, he didn't actually throw a phone at her, slap her across the face, and grab her by the hair, as she once testified in a deposition during one of the nastiest divorces in Hollywood history. Perhaps Depp will play audio tapes in an effort to claim his ex-wife was the abusive one in this stormy relationship. It won't matter because there's really no reversing the damage that Depp has incurred these past few years.

That should have become obvious on June 26 when it was revealed that Disney was working on a new Pirates of the Caribbean, this time featuring a female-fronted cast led by Margot Robbie. In other words, at the exact moment when a U.K. judge was deciding on whether to actually proceed with Depp's libel suit after the actor's attorneys breached a court order by failing to turn over a series of text messages concerning the procurement of drugs, Depp may have lost his most lucrative role. A source tells The Hollywood Reporter that Jerry Bruckheimer would like to at least nod to the popularity of the Captain Jack Sparrow character in the coming film if the controversies die down, but at this point, Disney is resistant. Depp is too controversial. (Disney didn’t respond for comment.)

So Depp will pursue a favorable verdict and a nominal damages award from a trial that's playing out under English defamation standards — in other words, where the burden of truth is on the news publisher to establish rather than Depp. Meanwhile, over the next few weeks, amid an international pandemic, Depp will surely incur additional reputational harm from these prying court proceedings, the impetus for which was a column questioning J.K. Rowling's defense of Depp being cast in the adaptation of her book Fantastic Beasts and Where to Find Them. It's hard to sue one's way out of controversy.

Given this situation, it's no wonder Hollywood insiders are increasingly puzzled over Depp's moves. I spoke to several industry attorneys and publicists, all of whom offered some variation on the theme that the public would likely have forgotten Depp's years-old troubles but for court actions that keep reminding everyone.

“One of the things you’re always balancing is, how do you respond to accusation? Do you add more fuel to the fire or let it dissipate?” asks Howard Bragman, a longtime crisis manager in the entertainment industry.

Says Neville Johnson, an attorney who has previously brought suits against tabloids but questions the star plaintiff's wisdom here: “Depp doesn’t need the money [from any damages award] and it is not going to enhance his reputation.”

***

How did Depp find himself at the point of zugzwang? More and more, one has got to question Depp's reliance on attorney Adam Waldman. Depp has many attorneys, and the others seem to be the ones actually doing the hard work in court, but Waldman has become Depp's mouthpiece and also looks to be the lawyer who has emerged as the star's svengali of sorts.

Who is Waldman?

A search on Google (where he referred this reporter instead of agreeing to an interview) yields some clues, though hardly anything definitive. Unlike most attorneys, Waldman maintains no bio page these days. A few years back, Waldman's D.C.-based Endeavor Group did have a working website, but no longer. A trip to the Internet Archive reveals that Waldman once took credit for overseeing "all corporate aspects" of the landmark antitrust trial United States v. Microsoft, being the "principal architect of several ground-breaking initiatives" including the Center for Global Development, and even predicting the 2009 financial crisis with a "seminal law review article" authored all the way back in 1993. That would be when he was a student at American University, which did indeed confirm his graduation in 1995.

Waldman, according to reputable press reports, seems to have been involved in various dealings with the Kremlin, Russian oligarch Oleg Deripaska, and Wikileaks founder Julian Assange. He had a lucrative ($40,000 per month) lobbying contract with Deripaska, was registered as an agent for the Russian government, visited Assange nine times in one year at the Ecuadorian embassy in London, apparently in connection with efforts to strike a deal with the DOJ, and more. His associations have become fodder for intrigue among reporters and lawmakers even if there’s a lack of public evidence of anything more than Waldman having a talent for landing recurring, if minor, roles in real-life Russian political dramas.

I'd say that Waldman's foray on the periphery of the industry hardly matters, except that it appears Depp is publicly burning bridges with the sort of abandon that one hardly ever sees among big Hollywood stars. Depp's recent legal pursuits include battling his former money managers over the disposition of hundreds of millions of dollars; splitting with longtime transactional attorney Jake Bloom; and, of course, continuing to face off against Heard again and again and again, including in a separate defamation suit against her over an op-ed she wrote for The Washington Post. That latter case is currently scheduled for trial in Virginia in January 2021.

That's a lot of legal work, and Waldman appears to have taken on a central role. As Stephen Rodrick put it in an often-cited Rolling Stone article, "Waldman seems to have convinced Depp that they are freedom fighters taking on the Hollywood machine rather than scavengers squabbling over the scraps of a fortune squandered."

Waldman is also conducting a public experiment on social media. In a nutshell, do tactics of preaching to a choir of a small number of Twitter accounts achieve anything outside of politics? Most attorneys don't pick fights with the media during a big case, particularly in the weeks before trial. Not Waldman. For weeks, he's been goading reporters at The New York Times who apparently are investigating him, and he's been whipping his followers into a frenzy with attacks on Rodrick, Variety ("Saudi Arabia's Variety"), THR ("too much corruption") and other journalists and news publications. (That said, Waldman may not be above going to his own favored media outlets. Depp's attorneys have been accused in court papers of leaking to outlets like The Blast, which seems to be to Depp what Fox News is to Trump.) He's also litigating on Twitter, presenting evidence procured from Depp's cases, and overall, exhibiting highly unusual behavior for a working attorney.

To what end? That one is very hard to answer. But if anyone in Hollywood is ready to take on "fake news," the ticket of Depp-Waldman should be deemed real contenders.

***

In the era of #MeToo, allegations of misconduct get attention — and deservedly so — but some newsrooms have traditionally made a distinction between behavior in the workplace and domestic conduct, with the latter being perceived as tabloid fodder. This time, though, an ugly divorce proceeding has transformed into something quite more.

Alas, the trial of John Christopher Depp II v. News Group Newspapers Ltd has now begun.

On July 7, Depp himself took the witness stand and accused Heard of being sociopathic, a narcissist, and completely emotionally dishonest. He insisted her "sick" claims of abuse are untrue. And in opening statements, his attorney David Sherborne said, "This is not a case about money. It is about vindication."

Depp, in fighting a battle against an unflattering headline, is merely going to draw more attention to The Sun's accusation that he's a "wife beater," especially once Heard gets on the witness stand. At the end of it all, no matter the verdict, this trial will likely do nothing to tamp down the controversies that have tarnished his career. He's elevated a tabloid columnist's random musing into something that's going to be covered by serious news outlets for weeks, months, years on end.

For that, Johnny Depp should regain his senses and fire his lawyers.

Vindication ain't possible. The damage is done. That's the only thing a successful libel claim shows.

__________

What kind of Weinstein bullshit is this? So what, If he gives up on getting Justice for what hes been through Hollywood might throw him some crumbs?

JUST SHUT UP AND SUFFER IN SILENCE! ACCEPT THE LIES THAT WERE SPREAD ABOUT YOU! LET YOUR ABUSER WIN!

I wonder if this clown would tell metoo victims not to get Justice?

#justiceforjohnnydepp

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mostlysignssomeportents · 3 years

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The music monopolists

Writing in Wired, Institute for Local Self Reliance researcher and anti-monopolist Ron Knox gives a thorough, important account of how music industry monoplization resulted declining revenue for artists, even as the industry itself has reaped greater profits.

https://www.wired.com/story/opinion-big-music-needs-to-be-broken-up-to-save-the-industry/

Importantly, Knox describes how concentration has come to every link in music’s supply chain, from radio to recording, streaming to live performance. The monopolists who dominate these sectors fight fiercely between each other, but no matter who wins, artists lose.

Let’s go segment by segment. Two thirds of all North American music comes from three labels. The labels grew through anticompetitive mergers: giant companies, awash in investor cash, bought out mid-sized, successful labels, turning them into subdivisions of the Big Three.

The more concentrated the labels got, the worse they were for everyone. They spent the nineties and naughties price-gouging record companies, pocketing hundreds of millions from an illegal price-fixing conspiracy. The fines they paid were smaller than the profits they reaped.

But at least they distributed music. Today, the struggling physical record store industry — a network of passionate music sellers who serve the most intense music fans — find themselves getting “record shipments” that turn out to be boxes of random stuff like cough syrup (!).

That happened when the Big Three all piled their distribution into a single company, the monopolist Direct Shot Distributing. As Direct Shot started to fail, its operations descended into chaos, and record stores started to receive boxes of random consumer packaged goods.

It was bad news for the non-monopolized, music-first record stores, but it barely registered for the Big Three labels — today, they buy an average of two new acts every day.

The labels don’t make money from selling records, of course. They get their money from streaming.

Streaming is also massively concentrated, gathered into the hands of just a few companies: Spotify, Apple, Youtube, Amazon — with the notable exception of Spotify, the industry is dominated by companies that also monopolize other sectors.

Monopolies are good to these companies. Spotify’s market-cap doubled during the pandemic — the market values its 150m subs (twice as many as subscribe with Apple) at $50b. The major labels get $1m/hour from streaming. 99% of their artists see $25/year in streaming royalties.

Spotify may be the biggest streaming service, but it’s not the lowest-paying. Youtube — a Google division, whose unsuccessful attempt to launch an in-house video service convinced it that it had to buy someone else’s success — drives the worst bargain.

Spotify uses its industry dominance to extract heavy fees from the labels — creaming 30% of the total revenue generated by a typical track. Big Three monopolists with fat margins can absorb this. Indies? Not so much.

Spotify’s market cap growth is in part due to the new ways it’s come up with to shake down the labels — a variety of tactics that all boil down to one thing: payola. Spotify will sell labels pop-up ads, placement in “radio” algorithms, and access to “Discovery mode.”

Like all forms of payola, Spotify’s rate-card is a way for monopolists to edge out indies, buying their way into your ear-holes. I’m sure that the Big Three would rather keep the bribes they pay to Spotiify, but the consolation prize is pretty sweet.

If the Big Three are the only ones who can afford to buy access to Spotify’s audience, then creators are driven to sign with them, and have less bargaining leverage when they negotiate their deals.

Spotify, meanwhile, can consolidate its gains by driving up those fees, pitting labels against each other in a bidding war for access to listeners. This effectively drives down the royalty rate Spotify pays, because every new track will have to buy in to get any reach.

Spotify talks a good game about how it uses big data and machine learning to pick the songs you hear, but increasingly, the algorithm is getting far less compute-intensive, a simple sort-by-highest-bidder system you could operate from a laptop running Windows 3.1 and Excel.

In theory, streaming losses can be made up with touring. Acts who attain digital popularity can charge access at the door to clubs and other venues. The only problem is that live performance is also a monopoly business.

The 800lb gorilla there is Livenation, a division of the ticket monopolist and notorious arm-breakers Ticketmaster — spun out of Clear Channel, the monopolist that we now know as Iheartradio.

Livenation parlayed its access to the capital markets to buy out $1b worth of venues and promoters, before being acquired by Clear Channel for $4.4b in 2005. Today, it’s a division of Liberty Media, consolidated with Ticketmaster, Pandora, and Siriusxm.

What goes around, comes around: Liberty’s private equity owners are in the process of buying up Iheartradio, re-merging all of Clear Channel’s spinouts into one giga-monopolist.

The conglomerate already coerces artists to book exclusively in its clubs and using its ticketing, starving independent venues. Add 850 terrestrial radio stations to the mix and it will choke off all the oxygen that independent venues, promoters and ticketers rely on.

Liberty didn’t buy all these companies because it’s passionate about music and wanted to ensure artists got a fair shake. By rolling up the entire live music/radio supply-chain, it bought the power to extract vast sums from musicians, and to keep rivals out of the market.

Well, not all competitors. Lollapalooza co-founder Marc Geiger raised tens of millions for “Savelive,” a new would-be monopolist that offered to “rescue” live music venues in exchange for a 51% stake in them.

Savelive illustrates an important point about the nature of monopolies: they beget more monopolies. Consolidation in the labels meant that only the largest streaming companies could negotiate a sustainable rate.

But consolidation in radio drives consolidation in labels — and many of the indie radio stations that survived the first wave of consolidation were picked up cheap by Iheartradio once monopolistic streamers ate their lunch.

This is a pattern across the whole entertainment industry: bookstore mergers and big box retailers drove consolidation in publishing; that was accelerated by consolidation in online ebook and physical book retail.

It’s not limited to the entertainment sector either. As David Dayen describes in his essential book MONOPOLIZED, hospitals didn’t start consolidating until the pharma industry underwent a wave of brutal mergers and started gouging for drugs.

https://pluralistic.net/2021/01/29/fractal-bullshit/#dayenu

Hospital consolidation led to gouging insurers, leading to a wave of insurance consolidation. Today, nearly every part of the health industry is monopolized, from pharmacy benefit managers to medical labs.

The only parts of the supply chain that doesn’t monopolize — that can’t monopolize — are the ends of the chain: the people who work in the system, and the people who use it.

Monopoly punishes doctors and nurses and other health workers — and it punishes patients.

It punishes writers and publishing workers, and it punishes readers.

It punishes musicians and independent venue owners, and it punishes listeners.

When every part of the supply chain gets so monopolized that it can’t easily be squeezed by any other part of the supply chain, these giants turn on us — the workers and users of the system. We, the atomized and fragmented, cannot resist the squeeze.

But as Knox writes, the tide is turning. After 40 years of waving through anticompetitive mergers in the name of “efficiency,” the DoJ and FTC are under new management, with two-fisted trustbusters like Lina M Khan at the helm.

https://www.eff.org/deeplinks/2021/08/party-its-1979-og-antitrust-back-baby

This new cohort of monopoly fighters reject the “consumer welfare” theory of antitrust (the idea that monopolies drive prices down and are therefore good for society), going to war against the hegemonic orthodoxy that began with Ronald Reagan.

https://doctorow.medium.com/epic-v-apple-d3e59893b4f3

The new antitrust is surging, with bills in the House and Senate, executive orders from the White House, regulatory proceedings at the DoJ and FTC, and an interagency-cabinet coordination committee that ties it all together.

This new antitrust promises workers and users of monopolized industries a better alternative than rooting for one giant to beat another in hopes that they will drop a few crumbs for the rest of us to enjoy.

Creative workers don’t have to choose between Big Tech and Big Content based on their assessment of which monopolist will abuse them the least. Instead, we can root for antimonopoly, for giant-slaying, and the right to self-determination.

The most important immediate step towards that future is blocking new anticompetitive mergers, like Sony’s bid for AWAL, or Liberty Media’s use of a $500m SPAC to go on a vertical monopoly shopping spree.

The agencies have the power to stop these. They should. When you find yourself in a hole, stop digging.

But ending anticompetitive mergers won’t get us out of that hole: most industries (from beer to cheerleader uniforms to wresting to eyeglasses) are already monopolized.

The new trustbusters — and the ILSR — want to use antitrust law to break up these conglomerates. I think that’s right: vertical monopolies will always engage in self-dealing to the detriment of independents, workers and customers. Break. Them. Up.

But breaking up is hard to do. When the DoJ tried to break up IBM, the company’s lawyers outspent the entire DoJ antitrust division, every single year, for twelve consecutive years, and in the end, it escaped breakup.

That doesn’t mean we shouldn’t try. IBM escaped justice because Reagan was elected and neutered antitrust. And even though it remained intact, it was never the same — for one thing, it decided that it was too risky to make its own PC OS.

IBM knew that antitrust enforcers were very suspicious of tying software to hardware — so it tapped a couple of hacker kids, Bill Gates and Paul Allen, to sell it DOS, from their new company “Micro-Soft.”

Unfortunately for all of us, antitrust enforcement only declined after that, so IBM was able to return to its monopolistic ways, and Microsoft escaped from antitrust scrutiny after a mere seven years in regulatory hell.

Antitrust enforcement can sap monopolists of the will to power, as they become increasingly concerned that their actions will attract aggressive legal reprisals.

Think of how Apple “lost” the Epic lawsuit but still “voluntarily” rescinded its heretofore hard rule against apps providing links to web-pages where you can use third-party payment processors to make purchases.

As monopolists lose their nerve, space opens up for all kinds of pro-worker, pro-user interventions, far beyond those afforded by traditional antitrust.

Next year, Beacon Press will publish THE SHAKEDOWN, a book I co-wrote with Rebecca Giblin about the monopolistic corruption of creative labor markets and how creative workers, regulators and fans can resist it.

The Shakedown catalogs the ways that monopolization of investment, distribution and sale of creative works allows entertainment companies, Big Tech, and major retailers to shift an ever-larger share of the creative industry’s revenues from workers to themselves.

More importantly, we identify tools beyond breakups that we can use to de-monopolize the industry — things we can do right now, without having to wait for the conclusion of an antitrust suit that might run for decades.

Take reversion rights: many copyright systems allow creators to take back their rights after a set period (35 years in the US). This lets artists who signed bad deals — before they were proven successes — to resell their catalog or extract reparations by threatening to.

But reversion is really hard to do, and 35 years is way too long. Only an handful of creators — even those with valuable catalogs that could be renewed through reversion — ever manage it.

https://pluralistic.net/2021/07/06/backsies/#take-backs

Congress (and other legislatures around the world, including Canada, where this is likely to come up in the new Parliament) could fix reversion: make it easier to do, and make it available after a shorter period — say, 14 years.

And what about those bad contracts? The “freedom to contract” has always been subject to limits, where some clauses are deemed unenforceable “as against public policy” or because they are “unconscionable.”

With the entertainment sector consolidated into just a couple of states, state legislatures could act to void the most abusive clauses — for example, clauses that allow labels to claw back royalties indefinitely to recoup (often inflated or fictitious) “expenses.”

Our book explores dozens of these kinds of ideas, from co-operatives to trade unions; better accounting practices and direct arts subsidies; radical interoperability and collective licensing; minimum wages for creative labor and collective bargaining.

None of these are replacement for reducing the size and power of conglomerates throughout the supply chain, but all of them are interventions we can make as the power and nerve of conglomerates declines, changes that will hasten that decline and open more space for breakups.

And all of them are applicable, to a greater or lesser extent, to helping workers and users of all the other consolidated industries, from health care to cheerleading.

For example, expanding California’s ban on noncompete clauses would help fast-food workers nationwide — because today, fast food employers are the most aggressive abusers of noncompetes.

That means that a fried chicken cashier earning the tipped minimum wage can’t quit to work at a burger joint across the street for a $0.25/hour raise. Creative workers aren’t the only ones suffering from monopolization — we’re not even the worst off.

But by definition, creative workers have a platform. We reach people. We have the potential to help form the kind of unstoppable coalition that we’ll need to reverse the generations of oligarchic, post-Reagan consolidation.

You may have heard about how Danish McDonald’s workers earn $22/hour and get six weeks’ paid vacation and sick leave. That didn’t come about because McDonald’s was required by law to pay it.

It was worker solidarity that did it. As Matt Bruenig writes, McDonald’s initially refused to sign the voluntary “hotel and restaurant” collective agreement. So its workers went on strike.

https://mattbruenig.com/2021/09/20/when-mcdonalds-came-to-denmark/

Now, if McD’s workers had struck alone, they’d probably have lost. But Danish law allows for sympathy strikes — that is, it allows workers in other parts of the supply chain to take industrial action to support their sisters and brothers who are striking.

When the McD’s workers walked out in 1989, sixteen other sectoral unions joined them. They didn’t just help picket at leaflet in front of McD’s restaurants!

Dockworkers wouldn’t unload McD’s shipments. Printers wouldn’t print their cups and placemats.

Builders downed tools on McDonald’s construction projects. Typesetters wouldn’t set the McD’s ads in the daily papers. Truckers wouldn’t deliver to McD’s restaurants. Food industry workers wouldn’t produce the drink syrups, fries and other inputs to the McDonald’s kitchens.

McD’s caved.

Now, as Bruenig points out, these kinds of sympathy strikes are illegal in the US, but it’s a mistake to think that workers don’t have power because sympathy strikes are illegal — rather, sympathy strikes are illegal because workers don’t have power.

Workers across all sectors face the same kinds of monopolistic exploitation. Workers across all sectors have a common enemy (literally, thanks to “common ownership” where companies like Vanguard and Berkshire Hathaway hold significant stakes in almost every major company).

With a shared cause, shared tactics, solidarity and a renewed sense that we can do more than root for the giant we think will mistreat us the least, creative workers and their sisters and brothers in every sector can reverse generations of losses.

That’s why the new antitrust matters — because it is an assault on the consolidation that gives all industries the power to shift money and other forms of value from workers and users to a small elite of investors.

#pluralistic

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gov-info · 3 years

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The introduction is a must read.

Two decades ago, Google became the darling of Silicon Valley as a scrappy startup with an innovative way to search the emerging internet. That Google is long gone. The Google of today is a monopoly gatekeeper for the internet, and one of the wealthiest companies on the planet, with a market value of $1 trillion and annual revenue exceeding $160 billion. For many years, Google has used anticompetitive tactics to maintain and extend its monopolies in the markets for general search services, search advertising, and general search text advertising—the cornerstones of its empire...

Google has thus foreclosed competition for internet search. General search engine competitors are denied vital distribution, scale, and product recognition—ensuring they have no real chance to challenge Google. Google is so dominant that “Google” is not only a noun to identify the company and the Google search engine but also a verb that means to search the internet.

The Google Antitrust Lawsuit: Initial Observations

#crs #tech #google #doj #library #asap

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ailtrahq · 7 months

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In the latest development in the United States v. Samuel Bankman-Fried lawsuit, US DOJ prosecutors sent a letter to Judge Lewis A. Kaplan requesting to preclude the defendant from introducing evidence or argument about the current value of certain investments made by the defendant, especially $500 million investments in artificial intelligence company Anthropic. DOJ Seeks To Block Sam Bankman-Fried’s Anthropic In a court filing on October 8, US DOJ attorneys sent a letter to Judge Lewis A. Kaplan seeking to block Sam Bankman-Fried from mentioning the value of current investments in artificial intelligence firm Anthropic. The prosecutors allege that the $500 million investment made by SBF in 2022 was made using stolen funds from FTX customers. “Evidence regarding the current value of the defendant’s investments could only be used to support the argument that FTX customers and/or other victims will ultimately be made whole, which the Court has recognized is an impermissible purpose.” Prosecutors believe such evidence would therefore be wholly irrelevant, and present a substantial danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, and waste of time. The Judge must preclude Sam Bankman-Fried’s defense team from making arguments or introducing evidence of investments in Anthropic. According to research firm PitchBook, FTX and its sister company Alameda Research made a $500 million investment in Anthropic. FTX co-founder Bankman-Fried, former head of engineering Nishad Singh, and former Alameda Research CEO Caroline Ellison were also investors in Anthropic. Anthropic Plans To Raise Funding At $30 Billion Valuation Anthropic has announced plans to raise additional funding from companies such as Amazon and Google at a valuation between $20 billion and $30 billion. In the wake of this announcement, there has been some public reporting suggesting that this valuation would increase the value of the defendant’s investment in Anthropic. This will increase the potential recovery for FTX customers and other creditors in the FTX bankruptcy. The court decision is still pending on Anthropic asset sales.

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edisonashley · 3 years

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Government Jawboning Doesn’t Turn Internet Services into State Actors–Doe v. Google

The plaintiffs are “conservative content creators” (i.e., QAnon enthusiasts) who posted videos to YouTube. YouTube suspended their accounts. The plaintiffs sued for First Amendment violations (presumably a 1983 claim). The court previously denied a TRO. YouTube now gets the case dismissed with prejudice. It’s not a close call.

To show YouTube is a state actor, the plaintiffs tried four different unsuccessful arguments:

Public Function. This argument is foreclosed by Prager U. v. Google.

Compulsion. The court says:

The Court finds that the statements by federal lawmakers Plaintiffs point to are insufficient to plead that the government “commanded a particular result in, or otherwise participated in, [Plaintiffs’] specific case.” [cite to Daniels v. Alphabet] Plaintiffs point to generalized statements from lawmakers pertaining to “coronavirus-related misinformation,” “disinformation proliferating online,” “QAnon-related speech,” and “conspiracy theories.” None of the statements mention Plaintiffs’ names, their YouTube or Google accounts, their channels, or their videos. Plaintiffs argue that state actors “commanded a particular result” in their case because “Plaintiffs have alleged that Congress demanded that the unpopular speech dubbed ‘misinformation,’ and QAnon-related speech be limited and erased, which is precisely what Plaintiffs allege Defendants did.” The Court disagrees that broad lawmaker proclamations regarding “misinformation” or “QAnon-related speech,” for example, are sufficient to show that the government “commanded” the suspension of Plaintiffs’ accounts. Even if Defendants had complied with these lawmaker statements to the letter, they would still have had the ultimate discretion on what videos or accounts fit into buckets like “misinformation” or “QAnon-related speech.”

Plaintiffs claim that Defendants’ conduct is state action because it was in response to the threat of various government penalties—the repeal of CDA Section 230 protections, “show trials” in front of the U.S. Senate, and a DOJ antitrust suit against Google—allegedly linked to whether Defendants appropriately moderated certain types of content. The threats of penalties Plaintiffs point to are insufficient to convert private conduct into state action here. The Ninth Circuit has found that pleading “a private actor’s conduct is subject to penalties…is…insufficient to convert private action into that of the state.” Moreover, Plaintiffs fail to point to any penalties that necessarily or even likely would have followed if Defendants did not suspend their accounts….

Plaintiffs can point to no authority to support a compulsion theory of state action based on penalties, particularly “threats” as speculative as the ones they point to here.

To be clear, it’s offensive when our elected officials treat Section 230 like a political football, threatening to withdraw the immunity if services don’t bend to their censorial whims. When politicians do this, they are really saying they don’t care about good social policy that benefits their constituents. It’s all fun-and-games until an immunity gets broken. But the plaintiffs’ arguments–that the politicians’ jawboning make all subsequent content moderation decisions into state action–are even worse from a policy outcome. As they would say on Reddit, ESH.

Joint Action. The court says:

the Schiff-Wojnicki Twitter exchange Plaintiffs point to in support of their joint action claim clearly pertains to misinformation regarding COVID-19. As the Court discussed above, Plaintiffs have failed to allege any facts indicating that their posts pertained to COVID-19. Accordingly, it is unclear how this Twitter exchange supports a joint action theory pertaining to the suspension of Plaintiffs’ channels….Further, it is simply implausible to read a casual Twitter exchange between one member of Congress and YouTube’s CEO as joint action. Plaintiffs’ theory would effectively cause companies to cease communicating with their elected representatives for fear of liability, as Defendants compellingly argue.

Chilling companies’ abilities to petition the government is another censorial consequence of the plaintiffs’ arguments.

The court continues:

Based on Plaintiffs’ allegations, their content was removed through the following series of events: federal lawmakers publicly flagged general categories of content for Defendants to consider moderating and issued threats to compel Defendants to comply, Defendants independently chose what content fit into the lawmakers’ general categories, and Plaintiffs’ channels happened to be some of the content Defendants decided to remove. Courts have dismissed cases for lack of state action despite significantly more alleged cooperation between public and private actors compared to what Plaintiffs allege here

…far more is necessary to plead joint action than what they have alleged here…At most, Plaintiffs appear to allege that government officials identified categories of information Defendants should consider removing—there is no allegation that government officials were in the room or somehow directly involved in the decision to suspend Plaintiffs….there are no allegations that Defendants invoked state or federal procedure to bring about the suspension of Plaintiffs’ accounts. Defendants merely suspended Plaintiffs from Defendants own private platform.

Government Nexus. “Plaintiffs have failed to point to a single case in which governmental nexus was found.”

Implications. Unsurprisingly, this case wasn’t close. #MAGA plaintiffs are routinely overclaiming state action by Internet services as a short-sighted ploy to force the services to carry garbage content that harms the services’ audiences. This opinion is a clean and decisive ruling that standard government jawboning doesn’t automatically turn the entire Internet into a giant state actor. I can’t wait for this litigation fad to die out.

The court declined supplemental jurisdiction over the state law claims, which the plaintiffs could choose to refile in state court if they want to lose again. I think it’s more likely the plaintiffs will choose to appeal the case and give the Ninth Circuit a first-hand opportunity to explain why Prager U v. Google means they lose.

In contrast to many cases in this genre, the plaintiffs were represented by counsel. That counsel is Cris Armenta. In addition to being on the losing side of the Garcia v. Google case, she also lost the Daniels case, which this court repeatedly cited against her arguments in this case.

Case Citation: Doe v. Google LLC, 2021 WL 4864418 (N.D. Cal. Oct. 19, 2021)

Selected Related Posts About State Action Claims

Anti-Zionist Loses Lawsuit Over Social Media Account Suspensions–Martillo v. Facebook

Court Nopes Another Lawsuit Over Facebook Suspensions–Orders v. Facebook

Facebook Defeats Lawsuit By Publishers of Vaccine (Mis?)information–Children’s Health Defense v. Facebook

Court Rejects Lawsuit Alleging YouTube Engaged in Racially Biased Content Moderation–Newman v. Google

Yet Another Court Says Facebook Isn’t a State Actor–Brock v. Zuckerberg

YouTube (Again) Defeats Lawsuit Over Content Removal–Lewis v. Google

When It Came to @RealDonaldTrump, Twitter Couldn’t Please Everyone–Rutenberg v. Twitter

Another Must-Carry Lawsuit Against YouTube Fails–Daniels v Alphabet

Newspaper Isn’t State Actor–Plotkin v. Astorian

An Account Suspension Case Fails Again–Perez v. LinkedIn

Are Social Media Services “State Actors” or “Common Carriers”?

Google and Twitter Defeat Lawsuit Over Account Suspensions/Terminations–DeLima v. Google

More Plaintiffs (and Lawyers) Need To Be Reminded That YouTube Isn’t a State Actor–Divino v. Google

Facebook Isn’t a Constructive Public Trust–Cameron Atkinson v. Facebook

Google and YouTube Aren’t “Censoring” Breitbart Comments–Belknap v. Alphabet

LinkedIn Isn’t a State Actor–Perez v. LinkedIn

Section 230 Preempts Another Facebook Account Termination Case–Zimmerman v. Facebook

Section 230 Ends Demonetized YouTuber’s Lawsuit–Lewis v. Google

Court Rejects Another Lawsuit Alleging that Internet Companies Suppress Conservative Views–Freedom Watch v. Google

Another Suspended Twitter User Loses in Court–Wilson v. Twitter

First Voters Reject Tulsi Gabbard, Then a Judge Does–Gabbard v. Google

YouTube Isn’t a State Actor (DUH)–PragerU v. Google

Facebook Still Isn’t Obligated to Publish Russian Troll Content–FAN v. Facebook

Vimeo Defeats Lawsuit for Terminating Account That Posted Conversion Therapy Videos–Domen v. Vimeo

Russia Fucked With American Democracy, But It Can’t Fuck With Section 230–Federal Agency of News v. Facebook

Private Publishers Aren’t State Actors–Manhattan Community Access v. Halleck

Your Periodic Reminder That Facebook Isn’t a State Actor–Williby v. Zuckerberg

Section 230 Protects Facebook’s Account and Content Restriction Decisions–Ebeid v. Facebook

Court Tosses Antitrust Claims That Internet Giants Are Biased Against Conservatives–Freedom Watch v. Google

Twitter Isn’t a Shopping Mall for First Amendment Purposes (Duh)–Johnson v. Twitter

YouTube Isn’t a Company Town (Duh)–Prager University v. Google

Facebook Defeats Lawsuit By User Suspended Over ‘Bowling Green Massacre’–Shulman v. Facebook

Yelp, Twitter and Facebook Aren’t State Actors–Quigley v. Yelp

Facebook Not Liable for Account Termination–Young v. Facebook

Online Game Network Isn’t Company Town–Estavillo v. Sony

Third Circuit Says Google Isn’t State Actor–Jayne v. Google Founders

Ask.com Not Liable for Search Results or Indexing Decisions–Murawski v. Pataki

Search Engines Defeat “Must-Carry” Lawsuit–Langdon v. Google

KinderStart Lawsuit Dismissed (With Leave to Amend)

ICANN Not a State Actor

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