For over a decade, we have been trying to drive home the point that advertising actually is content and that content is advertising. It's a mindset sort of thing, but one that is incredibly important in an internet age where so much of a revenue emphasis is on ad-driven business models. The point of this all is that you can make any advertising included in a good or service all the more effective if --wait for it -- your customers actually want and enjoy the ads. If they're engaging, useful, or funny, the normal complaints you hear about commercials and the like simply melt away.

But if your ads both suck and you force them on your customers in a paid-for product in the most ham-fisted way? Well, then it turns out you're 2K sports.

One of the many shitty things about the NBA 2K series is the fact that, for the last few years, there have been unskippable ads that sometimes load before a game. This year is no exception.

The ads usually turn up as part of a pre-game video, and while in previous years they’ve been for brands like Converse and the TV show Snowfall, this year it’s an Oculus Quest commercial that’s got fans upset.

I'm a fan of the NBA 2K series, but it is undeniable that this is the worst part of the franchise. When it comes to pissing off your own customers, who are often paying $60 for your product, there is no more comprehensive way to irritate them than by forcing advertisements upon them that are shitty and not useful. While this practice would be irritating for any game, it is especially so for NBA 2K, which is a retail game customers pay for and which already is chockablock full of in-game sponsorship advertising to go alongside microtransactions. And making the ads un-skippable seems to indicate just what media the 2K Sports folks think they're delivering, because this is more of a television thing than a practice for video games.

Meanwhile, gamers are generally pissed, enough so that 2K Sports responded with a tweet.

It's frankly quite hard to believe them, given that this has been the norm and the public response to it for some time. And, again, what if the ads were good? What if some real effort was made to put in content that was relevant, entertaining, or useful? Do we really think 2K Sports would be getting the same backlash?

Last month we had a post about wolf kink erotica writer Addison Cain (pen name) and her abuse of the DMCA which we had first written about in May, but which came up again after YouTuber Lindsay Ellis did a fantastic video analyzing the entire case. If you haven't seen that, here it is:

The reason we wrote about it again last month was that after Ellis posted her video, a lawyer named Tynia Watson had sent Ellis what appeared to be one of the stupidest legal threat letters I've ever seen (and I've seen a lot). Ellis only revealed a brief portion of that letter, but that was enough.

Now, in a new video, Ellis describes all of the nonsense that has happened since then, which goes super deep in the weeds on a variety of things. You can watch the whole thing here:

I'm not going to go over everything in the video because (1) you should watch it and (2) a bunch of it is super crazy and I don't even want to start to think about figuring out how to explain all of the background necessary. Instead, I'm just going to focus on the legal threats of Tynia Watson, who is, somehow, an actual lawyer, meaning she should fucking know better than to send such bullshit conspiracy-theory laden emails to basically everyone.

As we noted, the original letter from Watson seemed to be claiming both copyright infringement (on the basis that Ellis quoted a few short segments in an obviously fair use manner) and "numerous false statements" that I could see no evidence of. In fact, Ellis' reporting got me to go back and read through a whole bunch of documents in one of the lawsuits that the video was about, and discover how Cain had insisted, repeatedly, that it was her publisher who filed the lawsuits and she had nothing to do with it -- though in discovery in a different lawsuit, it came out that Cain was in the driver's seat through much of this, telling her publisher to send the (bogus) DMCA notices, and then later telling her publisher how she was going to "hide behind" them. In fact, Cain got dismissed from one of the lawsuits on the basis that the DMCA notices were all sent by the publisher. That's kind of a big deal.

Anyway, Watson then started sending more threat letters, including to Patreon and YouTube, to try to get the video taken down. Any real copyright (or defamation) lawyer should be embarrassed that Watson is also a lawyer, because these letters are... bad. You can see them in the video (so I don't have full copies to post here, as I normally would). First, Watson sent a takedown to... Patreon. Even though the video was hosted at YouTube. Ellis, like many YouTubers and podcasters, uses Patreon as a revenue source, but there's little reason to target them for copyright infringement other than being vindictive. Patreon told Ellis to go through the standard counternotice process, but did ask her to remove the link to YouTube from her Patreon post for the requisite 10 days under the DMCA to retain its safe harbors (and then relink the video). But then it also told Ellis that if this did go to court, it would totally back her up (FWIW, Patreon has some great people who work on this stuff, so I'm not surprised to see them stand behind their user like that).

Then, YouTube notified her that it had also received a takedown from Cain. YouTube went even further and said that it didn't see how the video was infringing at all, and had rejected the takedown demand. Ellis seems surprised about this and says that she's never heard of YouTube not complying with a takedown, but it actually happens reasonably often. Despite all the mess with things like ContentID, YouTube's legal team does take fair use seriously, and especially on high profile videos is pretty quick to push back on censorial thuggish bullshit takedowns.

Ellis then has a fun narration of the takedown letter that Cain sent to YouTube, which the company passed on. It's... stunningly stupid. Here's a key clip that I want to post here just to make sure that everyone can see just how incredibly stupid it is:

The work infringed is not "fair use". My book is not public domain; it is a creative work, not a text book. The poster reads my books to degrade my work. This is not fair use of a copyrighted work, nor was this video a review of my work. It was a personal attack framed around two lawsuits filed against me personally in which the poster did not like the outcomes....

[....] The power significantly transformed my original work, both by altering the work and by mocking it for the poster's financial gain via YouTube and Patreon. Monetizing the video does not make this fair use.

Yeah. So. About all that. Fair use applies to copyright-covered works. If it were public domain, you wouldn't need fair use because... it's not covered by copyright. So that opening line is just... weird. Second, who cares if it's not a text book? Fair use is not limited to text books. Whether it's a personal attack (it wasn't) is completely meaningless to a fair use analysis as well.

But it's that second highlighted paragraph that is truly stunning. Because a key point for a court determining whether or not something is fair use is, literally, was it "transformative." And here you have Cain saying it's not fair use because it was transformative. She even used the word transformative. Also, the fact that the video is monetized is also (mostly) meaningless. Yes, "commercial" works sometimes are considered to have a higher standard when it comes to fair use, but not by much, and tons and tons of stuff is still done commercially and is fair use. The main way in which the commercial nature comes into play is if the work is somehow competing in the marketplace with the original. And in no world is Ellis' video competing with Cain's books.

From there, the takedown demand goes off on a rant about people being mean to her on the internet and then claims that the video is defamatory. And, like, that sucks, and people shouldn't be mean to Cain (or anyone) on the internet, and shouldn't threaten people, but that's got absolutely nothing at all to do with whether or not something can or should be taken down via a copyright claim. It's pure performative emotional bullshit victim-playing. Also, the video is not defamatory.

The video then goes into a bunch of other stuff which is fascinating and insane and bad, but we'll pick it up again later on in the story, after EFF steps in to defend Ellis and sends Cain's lawyer a letter basically saying "c'mon, you know this is nonsense." Rather than just walking away, the way a smart lawyer would, Cain's lawyer doubles down in a manner I've only rarely seen before. Again, I don't have the whole letter, but the parts that Ellis highlights are... whoo boy. A journey.

It argues that EFF is part of some giant conspiracy with Ellis and the Organization for Transformative Works (OTW). OTW is a great organization. We've written about them a few times, and once even teamed up with them on an amicus brief. But they're not EFF. They've worked with EFF on some things where their work has overlapped, but... so what? Watson/Cain seem to think there's a big conspiracy:

As your organization, the Electronic Frontier Foundation ("EFF"), is a close partner with the Organization for Transformative Works ("OTW"), and was clearly working with Lindsay Ellis on the Video, the EFF is aware that for over two years, my client, Addison Cain ("Ms. Cain") has been involved in two lawsuits in which the plaintiff (Quill Ink Books, Limited) was supported by the OTW...

Huh? What does that have to do with anything beyond attempting to tie red strings to cork boards. It gets worse.

Regardless of what really happened during the two lawsuits, it is clear that you and your client were intent on spreading false allegations and outright lies about my client and the litigation in the monetized Video, which the EFF received a portion of the proceeds to produce.

Ellis did mention EFF at the end of her first video because that's a nice thing to do when talking about bogus copyright abuse to try to silence critics, but it had nothing to do with the video. This is just random nonsense conspiracy theory claptrap.

Ms. Ellis could have easily condensed use of Ms. Cain's book into a few paragraphs for illustration instead of reading from the book for over two minutes.

Er. She did condense it down to just a few illustrative paragraphs. As is kinda obvious from the fact that in her nearly hour long video, there was just about two minutes of text from the book. It's bizarre to claim that Ellis should have done... what she actually did. And then complain about it.

It gets more and more unhinged, tying Zoey Ellis (the pen name of the plaintiff in the original case, who is no relation to Lindsay Ellis and has nothing to do with the creation of any of these videos) to all of this.

Zoey Ellis and her attorneys utilized numerous methods to obtain their objective to smear Ms. Cain's name, but one common denominator has been their utilization of the OTW, of which EFF is a close partner.....

[....]

Though you failed to directly address our allegations of defamation in your letter, it is our opinion that defamation exists, and because the EFF worked in collusion with Lindsey Ellis to create the monetized Video, the EFF is also culpable for the copyright infringement and the defamation.

Just to be clear, again, though it shouldn't need to be said: the EFF did not work with Lindsay Ellis on the video (nor did OTW, which is a totally separate organization from EFF). The video is neither defamatory nor infringing. And, even if it were (which it's not), there is no way that EFF would be "also culpable" of either the infringement or the defamation (which, again, does not exist). We're in pure crazy town.

And we're not leaving crazy town any time soon:

The tie between OTW and the EFF and the history of abuse my client faced the last two years, makes the use of Lindsay Ellis, a YouTube/Patreon personality with public sway, suspicious in the least, particularly where you assisted in the creation of a monetized Video where both the EFF and Linsday Ellis could profit off copyright infringement and defamation.

Again, none of that makes any sense, either from a "this is how facts work" standpoint or a "this is how law works" standpoint. If an actual lawyer wrote this, it is truly embarrassing. It goes on and on and on in this fashion and those are only the clips that Ellis shares. The full letter was apparently 40 pages. I'm flabbergasted.

As Ellis points out, Cain/Watson are effectively arguing that there's a vast fan fiction deep state working together to bring down... this one random author of wolf kink erotica. Because that makes sense.

Here's a simple lesson that Cain and Watson might want to learn: after people call you out on bullshit DMCA notices... stop digging. Don't file more. Don't claim defamation. Don't draw stupidly obviously bullshit conspiracy theories on the cork board with red yarn. Admit you fucked up, don't do it again, and move on with your life writing terrible wolf kink erotica fiction.

As many of you probably saw last week, Twitch decided to delete a ton of videos in response to DMCA takedown claims (which most people believe came from the RIAA). As we pointed out earlier this year, the RIAA had started flooding Twitch with DMCA takedowns over background music used in various streams. The whole thing seemed kind of silly, and now it appears that Twitch (despite being owned by Amazon and having some pretty good lawyers) was caught without a plan.

And that manifested itself in the way it handled these takedowns. Rather than the standard process -- taking the content down, letting the user counternotice, and then potentially putting it back up 10 days later if no lawsuit was filed -- Twitch decided to just totally wipe those files out and not even leave an option open to users to counternotice.

The key bit:

We are writing to inform you that your channel was subject to one or more of these DMCA takedown notifications, and that the content identified has been deleted. We recognize that by deleting this content, we are not giving you the option to file a counter-notification or seek a retraction from the rights holder. In consider of this, we have processed these notifications and are issuing you a one-time warning to give you the chance to learn about copyright law and the tools available to manage the content on your channel.

We know that copyright law and the DMCA are confusing. Over the past few months, we've been improving the tools available to help you manage music use in your live and recorded content. These include the ability to delete all of your Clips at once and control who can create Clips on your channel, scanning new Clips with Audible Magic and launching a free way to stream high quality music on your channel, Soundtrack by Twitch. Now that these tools have been released to all creators, we will resume the normal processing of DMCA takedown notifications received after 12 noon PST on Friday, October 23, 2020.

So... reading between the lines here, it sounds like someone (likely the RIAA or some similar organization) ratcheted up the threats for not being responsive enough on takedowns -- and someone up top just said "nuke 'em all, so we can claim we got rid of everything." But that's incredibly stupid on multiple levels.

That first paragraph above is completely nonsensical and I've read it over multiple times trying to parse out what the hell it means. The company admits that it isn't giving anyone any chance to counternotice, or get takedown demands removed. In fact, it sounds like they can't even bring back any of this content. It's just gone. That could really suck for some users who will not have that content at all.

But then in follows up with "In consideration of this..." which sounds like it's apologizing and going to give users back some sort of benefit... but instead, it says it's giving those users "a warning" and telling them to "learn about copyright law." What? What sort of absolute nonsense is that. If someone's video was mis-identified, or the video was fair use, why should they get a warning and have to "learn about copyright law"? It feels a lot more like Twitch should learn about copyright law.

Indeed, there's a potential argument that by deleting the videos and not allowing there to be a counternotice, Twitch got rid of the DMCA's safe harbor. If you read Section 512(g) of the DMCA, about the replacement of removed or disabled material, it says that there is no liability for the removal of content (which makes sense) with three "exceptions" delineated in Section 2. Here's the relevant part of 512(g):

(1)No liability for taking down generally.—
Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.

(2)Exception.—Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider—

(A)takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;
(B)upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and
(C)replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.

So it certainly appears that you can read this to say that Paragraph (1) (the no liability bit) "shall not apply... unless the service provider... replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice...." And thus, there is a reading of this that says that not replacing the material after receiving a counternotice (that is not followed by an actual lawsuit) could remove the safe harbor protections.

Of course, this may not really matter for a variety of reasons. First off, who would actually sue here? The safe harbors are from the copyright holder, but here the copyright holder is likely to be happy that Twitch has gone overboard in deleting all of the content. Second, this aspect of the safe harbor, which can be read to require the replacement of content following a counternotice has some other problems in that it can be read as forcing a company to host content. And, a website should have the freedom to not host any content it doesn't wish to host, even if that content is not infringing.

I vaguely recall a lawsuit a few years ago on this point, though in search for it I can no longer find it. From my (apparently faulty) memory, I recall that someone challenged a website's unwillingness to restore content after a counternotice, and the court found that a website has every right to keep a work it disabled offline. If anyone can remember which case this is, let me know.

Still, it remains somewhat perplexing that this is how Twitch handled all of this, and then claiming it would go back to "normal" DMCA processing as of the end of last week. Why couldn't it have just kept that up this whole time?

Here’s an idea for a business model. Instead of using valuable spectrum to close the digital divide by opening it for everyone to use, get the FCC to give us exclusive use for free. Next, convince states and the federal government that rather than build broadband networks to the disconnected in rural America, they should build out our network (also at no cost to us). Then we will use this network to harvest everyone’s driving information while serving up advertisements and other commercial services. In order to persuade taxpayers to support it, we’ll pretend the network is “absolutely essential” to preventing car accidents, despite the recent development of superior technology. To really sell the idea, we’ll label this piece of spectrum the “Safety Band.”

Welcome to the auto industry business plan for the 5.9 GHz band, 75 MHz of spectrum originally allocated to the auto industry for free back in 2004. However, the FCC is now proposing to reclaim 45 MHz of this for much-needed rural broadband and Wi-Fi 6 to better connect America. This would leave 30 MHz for intelligent traffic management and auto safety technologies, but would not leave any space available for the auto industry’s commercial applications.

Needless to say, the auto industry opposes this tooth and nail, and has enlisted the help of the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) to block the FCC’s effort to help close the digital divide. Additionally, the auto industry has consistently opposed efforts by consumer groups to have the FCC prohibit commercial uses and impose privacy protections on the band. Americans will be far better served -- and much safer on the road -- if the FCC follows through on its plan to repurpose the commercial part of the auto industry’s “safety band” for other uses.

A Brief History of 5.9 GHz – From “Safety Band” to $afety Band

For nearly two decades, the auto industry has pushed the idea of wireless “intelligent traffic” systems as a means of promoting safety. At the same time, however, the auto industry has made it equally clear to investors and equipment designers that the industry intends to use this network for commercial purposes as well. In 2004, the FCC adopted the auto industry plan to take 75 MHz of spectrum and reserve it exclusively for “Dedicated Short-Range Communications” (DSRC) for vehicle-to-vehicle (V2V) and vehicle-to-infrastructure (V2I) (and generically “V2X”) communications. However -- unlike other bands reserved for public safety purposes at the time -- the FCC permitted the auto industry to use these reserved frequencies for commercial purposes as well as safety purposes. The FCC restricts only two channels (totaling 20 MHz) to “collision avoidance” and “safety-of-life” applications, leaving the bulk of the spectrum available for commercial use.

Despite support from the auto industry, DSRC technology failed to catch on in the market.

There were many reasons for this. For one thing, V2X technologies only work to avoid collisions if the other car has a compatible V2X technology. This makes it absolutely useless against existing cars, pedestrians, bicyclists, or even stray deer. Other technologies, like LIDAR, do a much better job avoiding collisions, which is why these technologies caught on in the market and DSRC remains virtually undeployed. The auto industry responded to this market rejection by persuading the NHTSA to start a rulemaking to require DSRC in every new car whether consumers wanted the technology or not, and convincing federal and state agencies to invest hundreds of millions of dollars building DSRC “safety networks” for the auto industry to use for free. (The Trump Administration killed the DSRC rulemaking as part of its general deregulatory agenda in 2017.)

Reclaiming 5.9 GHz for Rural Broadband and Gigabit Wi-Fi to Connect America

The FCC began a set of proceedings in 2013 to expand the spectrum available for unlicensed uses with a particular eye toward expanding the 5 GHz band generally. For technical reasons, expanding existing bands creates huge advantages for increasing available bandwidth. The FCC hoped to expand the unlicensed portions of the 5 GHz band to enhance the ability of rural wireless internet service providers (WISPs) using the existing 5.8 GHz unlicensed band to offer real broadband in rural America, and creating the capacity for gigabit Wi-Fi in people’s homes. The FCC initially tried to work with the auto industry and NHTSA to find a way for unlicensed sharing to co-exist on a non-interfering basis with DSRC. That, to put it mildly, did not go well.

After nearly 20 years of waiting for the auto industry to make use of the 5.9 GHz band, and spending five years trying to work with the auto industry on a win-win solution, the FCC finally had enough. A unanimous FCC voted last December to propose simply taking away the 45 MHz of spectrum that the auto industry wants for commercial uses, leaving the auto industry with the 30 MHz needed to do actual safety and collision avoidance. (As the FCC noted, this 30 MHz is approximately what both Japan and the European Union allocate for similar technology.) The FCC proposal would also open the 30 MHz safety band to other V2X technologies, such as LTE-based V2X, that use existing mobile networks.

Needless to say, the auto industry did not take this lying down. Lobbyists have pressed the “safety band” argument consistently, while acting offended whenever someone points out that 30 MHz leaves them plenty of spectrum for actual highway safety uses if the industry just drops the commercial aspect. Of course, the auto industry says it’s “not about the money.” The industry claims it just expects even more awesome safety features at some indefinite time in the future and therefore requires all 75 MHz of spectrum for when that magical day arrives. In the meantime, though, the auto industry argues it might as well use the extra 45 MHz of spectrum for collecting people’s personal driving information and serving them personal ads -- solely in the name of efficiency, of course.

For the Auto Industry, It’s About the Money -- Not Saving Lives

As the old adage goes, when someone says, “it’s not the money, it’s the principle,” you know it’s about the money. In 2016, Public Knowledge -- joined by a number of other public interest organizations -- asked the FCC to prohibit commercial operation on the entire DSRC service and to impose privacy rules preventing the auto industry from using the information it collects from consumers for commercial purposes.

For the last four years, the auto industry has refused a non-commercial condition on a band that the industry itself claims is strictly for safety, arguing that it’s the “principle of the thing” that forces them to reject the condition. Likewise, while repeatedly affirming a deep and sincere commitment to protecting customer privacy, the auto industry refuses to accept any limitations on information collected outside the dedicated public safety channels. As one lobbyist for the industry put it: “On the commercial side, it’s whatever the privacy policy of the application provider is. . . . like Facebook.”

Furthermore, although publicly defending the V2X as a life-saving technology, the auto industry has pressed developers to include commercial applications in equipment and as an explicit part of the business case for adopting the technology. Even NHSTA, the regulator-turned-advocate for the auto industry, touts the commercial uses of DSRC and other V2X technologies.

As the FCC draws closer to a decision, expect to hear more from the auto industry and its surrogates about how the “safety band” saves lives while Wi-Fi just streams Netflix and cat videos. As hopefully everyone has learned in the current pandemic, access to broadband absolutely saves lives. Reclaiming 45 MHz from the 5.9 GHz band will help bring real broadband to rural America and to everyone dependent on Wi-Fi hotspots for access. The auto industry will still have plenty of dedicated spectrum for an actual safety band -- it just won’t be a $afety band.

Harold Feld is Public Knowledge’s Senior Vice President. For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Court of Appeals.

Donald Trump's offspring are as thin-skinned as the President himself. And, like him, they apparently have access to the worst legal counsel money can buy. First Daughter Ivanka Trump and her husband, Jared Kushner, apparently can't handle being criticized for their involvement in the mishandling of the COVID-19 pandemic.

The Lincoln Project -- formed by Republicans who've distanced themselves from Trump and the current Republican party -- has been routinely and harshly critical of Trump and his presidency. Recently, the group purchased billboards in Time Square that feature Ivanka Trump gesturing towards COVID-19 death counts in the US and New York State, along with a quote from Jared Kushner -- the head of Trump's business-facing COVID-19 response task force -- stating that anything New Yorkers suffer is their own problem.

Here's a photo of the billboard as posted by the Lincoln Project's Twitter account:

The hand gesture appears to be an approximation of the one used by Ivanka Trump when she tweeted a plug for Goya Beans earlier this year.

The Kushner quote comes from a Vanity Fair article published in September. It was attributed to him by an attendee of one of Kusher's COVID task force meetings -- ones in which he pushed the idea the "free market" would control the spread of the virus.

The same attendee explained that although he believed in open markets, he feared that the system was breaking. As evidence, he pointed to a CNN report about New York governor Andrew Cuomo and his desperate call for supplies.

“That’s the CNN bullshit,” Kushner snapped. “They lie.”

According to another attendee, Kushner then began to rail against the governor: “Cuomo didn’t pound the phones hard enough to get PPE for his state…. His people are going to suffer and that’s their problem.”

There's the factual background. Here's the response from the couple's lawyer, Marc Kasowitz, who seemingly has no idea how defamation law works.

We represent Mr. Jared Kushner and Ms. Ivanka Trump. I am writing concerning the false, malicious and defamatory ads that the Lincoln Project is displaying on billboards in Times Square. Those ads show Ms. Trump smiling and gesturing toward a death count of Americans and New Yorkers, and attribute to Mr. Kushner the statement that "[New Yorkers] are going to suffer and that's their problem" (alteration in the original), with body bags underneath.

Of course, Mr. Kushner never made any such statement, Ms. Trump never made any such gesture, and the Lincoln Project's representations that they did are an outrageous and shameful libel. If these billboard ads are not immediately removed, we will sue you for what will doubtless be enormous compensatory and punitive damages.

LOL. First off, Ivanka did make "such gesture," even if it was to cradle an innocuous can of beans rather than proudly present the COVID death toll. Second, whether or not it's ever proven Kushner made this statement, the Lincoln Project reasonably relied on reporting indicating he did. There's nothing false, malicious, or defamatory about the quote posted on the billboard.

Finally, I have no doubt that Kasowitz is capable of writing a complaint demanding "enormous damages." But writing a complaint is not the same thing as winning a lawsuit. And it's not even in the same area code, nevermind ballpark, of collecting any damages of any amount.

The Lincoln Project has responded appropriately to this idiotic attempt to silence it with legal threats.

The level of indignant outrage Jared Kushner and Ivanka Trump have shown towards the Lincoln Project for exposing their indifference for the more than 223,000 people who have lost their lives due to their reckless mismanagement of COVID-19 is comical. While we truly enjoy living rent free in their heads, their empty threats will not be taken more seriously than we take Ivanka and Jared.

[...]

Jared and Ivanka have always been entitled, out-of-touch bullies who have never given the slightest indication they have any regard for the American people. We plan on showing them the same level of respect.

The billboards will stay up.

The Lincoln Project issued a longer "go fuck yourselves" via their legal representation a few hours later. It's just as caustic as its first riposte.

You boldy predict that the result of your lawsuit "will doubtless be enormous compensatory and punitive damages."

Please peddle your scare tactics elsewhere. The Lincoln Project will not be intimidated by such empty bluster.

[...]

Contrary to your claim that "Mr. Kushner never made any such statement," Vanity Fair reported in a widely circulated article that Mr. Kushner did indeed say that New Yorkers "are going to suffer and that's their problem" during the time that he was entrusted to lead our nation's COVID-19 response. The Lincoln Project explicitly cited Vanity Fair as the source for Mr. Kushner's featured statement. Please contact us again if at some point you somehow succeed in convincing Vanity Fair to retract its article, but I trust this supplemental explanation settles the matter for now as to Mr. Kushner's remark.

[...]

The Lincoln Project would welcome the opportunity to further establish the truthfulness of its Time Square billboards through litigation and discovery, so sue if you must. In the meantime, may I suggest that if Mr. Kushner and Ms. Trump are genuinely concerned about salvaging their reputations, they would do well to stop suppressing truthful criticism and instead turn their attention to the COVID-19 crisis that is still unfolding under their inept watch. These billboards are not causing Mr. Kushner and Ms. Trump's standing with the public to plummet. Their incompetence is.

I'd like to say I'd be very surprised if this legal threat actually becomes a lawsuit. But it's been four extremely long years and it feels like nothing Trump or his offspring do is still capable of surprising me. If the power couple wants to pay Marc Kasowitz an enormous amount of money to waste everyone's time, that's up to them. But the Lincoln Project shouldn't be forced to waste its own time and money just because Ivanka and Jared feel like wasting theirs. So, for that reason, I hope this is the last we hear from Jared and Ivanka about the Times Square billboards.

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The RIAA is still going after downloaders, years after targeting downloaders proved to be a waste of time and a PR catastrophe. It's not actually thinking about suing the end users of certain programs, but it has targeted Github with a takedown notice for hosting youtube-dl, a command line video downloader that downloads videos from (obviously) YouTube and other video sites.

Not that this is going to be any more effective than suing file sharers. The software has been downloaded countless times and forked into new projects hosted (and distributed) elsewhere.

Github has posted the RIAA's takedown request, which looks a lot like a DMCA notice for copyright infringement. But it isn't actually targeting infringement. As Parker Higgins pointed out on Twitter, the RIAA -- after saying a bunch of stuff about copyright infringement -- is actually claiming this software violates Section 1201 of the DMCA, which deals with circumvention of copyright protection schemes.

The request lists a bunch of Github URLs as "copyright violations." But these aren't actually copyright violations. A little further down the RIAA gets to the point.

The clear purpose of this source code is to (i) circumvent the technological protection measures used by authorized streaming services such as YouTube, and (ii) reproduce and distribute music videos and sound recordings owned by our member companies without authorization for such use. We note that the source code is described on GitHub as “a command-line program to download videos from YouTube.com and a few more sites.”

So, it's not really about copyright infringement. The RIAA tries to blur that line a bit by saying the source code includes a short list of videos the program can download -- all three of which are videos owned by major labels. Then the RIAA goes a step further, basically claiming that any software that can download YouTube videos violates Section 1201 of the DMCA and only exists to engage in copyright infringement.

The source code is a technology primarily designed or produced for the purpose of, and marketed for, circumventing a technological measure that effectively controls access to copyrighted sound recordings on YouTube...

[T]he youtube-dl source code available on Github (which is the subject of this notice) circumvents YouTube’s rolling cipher to gain unauthorized access to copyrighted audio files, in violation of YouTube’s express terms of service,and in plain violation of Section 1201 of the Digital Millennium Copyright Act, 17 U.S.C. §1201.

This suggests the primary use of youtube-dl is to violate the law. There are plenty of non-infringing uses for this software, including the downloading of CC-licensed videos and those created by the US government, which are public domain. Basically, the RIAA is mashing up the takedown notice provision of DMCA 512 to try to remove code it claims (incorrectly) is violating DMCA 1201... while ignoring the Supreme Court's ruling in Sony v. Universal that says that tools with substantial non-infringing uses (in that case -- oh look! -- a video recording tool) is not by itself infringing.

Making blanket statements like these is irresponsible and misleading, but that's the sort of thing we've come to expect from entities like the RIAA. It's the same questionable claim the MPAA made back in 2014, when it demanded third-party hosts remove Popcorn Time repositories because the software could be used to engage in copyright infringement. It didn't make sense six years ago. It doesn't make any more sense now.

Added to all the stupidity is the fact that the RIAA appears to be threatening anyone even loosely-connected to the youtube-dl project. A couple of contributors to the project over the years have reported they've received legal threats from the RIAA for working on unrelated code and maintaining the repository.

The RIAA is welcome to continue its mostly-fruitless fight against copyright infringement. But it needs to do so honestly and do it without causing collateral damage to people who haven't engaged in infringement. The RIAA has no claim here. Github isn't engaging in infringement or circumvention. The software isn't either, not until someone uses it to accomplish this. If the RIAA has a problem with end users, it needs to take its complaints to them. This is just more bullshit being brought by an entity with enough heft it will rarely be challenged, even when it's in the wrong.

While COVID-19 has been great for some sectors (like video games or webcams), it's beating traditional entertainment options (like brick and mortar movie theaters and cable TV subscriptions) to a pulp. To the point where Wall Street analyst Craig Moffett has declared that the traditional cable TV sector is unraveling thanks to a sharp spike in cord cutting. Recent data suggests that traditional pay TV subscriptions have dropped 22.8% from its peak back in 2014. And by the end of 2024, analysts expect that fewer than half of US homes will subscribe to a traditional pay TV service.

A need to cut household costs, fewer live sports, obnoxious price gouging, and lousy customer service have all fused into a much worse problem, proclaims Moffett:

"According to Moffett’s estimates, pay TV subscribers fell 7.7% in Q2 (8.3% if pandemic-related nonpay customers are excluded), the worst ever for the sector. And it comes after eight consecutive quarters of worst-ever losses. That forebodes a scary trend for the business.

“At this rate of decline (somewhere between 7.7% and 8.3% per year), the traditional pay TV business would disappear entirely in another 12 years,” Moffett wrote, adding that just two years ago, the rate of decline was 3.3% while last year fell at a 5.4% clip.

“The pay TV ecosystem is well and truly unraveling,” Moffett wrote.

Fairly amazing for a trend the industry (including Moffett) spent years either downplaying or denying entirely. Cable executives had recently been trying to claim the trend would soon be reversing itself, a bit of prognostication that's not looking so hot.

To be clear, giants like AT&T and Comcast will be fine. They enjoy major broadcast empires and vast monopolies over broadband, allowing them to counter these losses by jacking up the cost of broadband service with little to no market or regulatory repercussion. But if they want to continue making any meaningful money off of television, they're going to have to finally do things like seriously compete on price (gasp) and actually investing in customer service (streaming alternatives routinely score far higher on customer satisfaction due to better service, lower prices, and greater flexibility).

Actually trying on this front means not socking consumers with cable TV bills that are packed with so many bogus fees, your total due can be up to 45% higher than the company's advertised rate. Actually trying means genuinely investing in customer service instead of routinely offshoring support to substandard subcontracted services. These are changes the industry could have embraced years ago, but it's abundantly clear many executives believed that the traditional cable TV cash cow was going to live forever. Now, due to decades of denial, the mad scramble from behind the eight ball begins.