Niche blogging (v. my blogging), and the "new" Blogtyrant

 

Reno, 2018

For a last post here this year, I thought I would review the “new” Blogtyrant’s advice on niche blogging (under its new ownership).

Generally, my perception is that niche blogs make money when there is an underlying transactional business.   That would be true of video channels.  A great recent example of the latter is Max Reisinger’s Perspectopia.  Max is a 17 year old starting college at UNC and who has lived in France but started a business making t-shirts at 16. 

Sometimes a niche is more obvious.  John Fish and his college channel from Harvard has drawn almost a million subscribers, although he hasn’t taken up blogging separately (so far).  In his case it is relatively simple to find corporate sponsors, like Audiobooks, who find the content wholesome and upbeat for consumers.

The mechanics of getting an audience on YouTube has gotten more attention recently, with the publicity about the partner program, “commercial viability”, COPPA compliance, and the like.

With blogs it was more old school, with particular attention to email subscriptions, which a lot of people don’t want because of spam problems and trustworthiness for security.

I did violate their advice when I started out with Blogger in 2006, and blogged about “all” the news.  But that’s partly because of how I got into commentary, starting with gays in the military in the 1990s.  It got to be about privacy, then about duty (the military draft), fairness, freedom of speech, and then individual self-agency v. identarianism.

So I really had nothing to “sell” in the usual sense, as the books are old (the most recent is 2014). The best way to narrow it would be my music (well explained now on a Wordpress blog), the novel, the screenplay, or perhaps a documentary film idea floating around which we’ll come back to.  It came up last February in a scramble involving a pitchfest.

My whole blogging setup is due for an enormous simplification at the start of 2022 (one more year), and I’ll come back to that soon.

Note: the videos for Blogtyrant are older and are all by Ramsay.  I don’t how his climate change activity in Australia (tree planting) is going but I would love to know.

McConnell throws a Section 230 "poison pill" into the $2000 stimulus; Copyright Office makes a brief statement about CASE Act

 

hotel room 

The US Copyright Office has acknowledged on its website that the Congress passed the CASE Act on Dec. 22, 2020, and it would have become law on Sunday night, Dec. 27, when President Trump signed the entire omnibus bill into law.

It also makes a note about unauthorized streaming services.

The memo link says that the law requires the Office to have the claims mechanism operating within one year (of Dec. 22) although that can be extended for 180 days.

The Office advises visitors to check their NewsNet link regularly to check on progress.

Also, late Tuesday we learned that Mitch McConnell has crafted a bill tying the upgrading of the stimulus to $2000 to outright repeal of Section 230.  Makeena Kelly has the story for The Verge.  As of now, observers don’t expect this to get far, but we’ll watch it closely.  The “poison pill” has the flavor of intentionally induced political “class warfare”.

Glenn Greenwald discusses social media censorship since Trump won in 2016

 Freddie Sayers of the YT Unherd channel interviews Glenn Greenwald from home in the mountains near Rio, Brazil, about big tech censorship.

In the spring, Facebook tried to ban information on COVID that contradicted the WHO, only to find that WHO got a lot of stuff wrong at first, even masks. YouTube has sometimes banned discussion of hydroxychloroquine and ivetmectin, the latter of these has a better reputation than YT thinks. :

Greenwald thinks social media started reversing its previously libertarian position after Trump won in 2016, with all the attention to foreign bots.  But it got much worse after Charlottesville, with even web hosts getting involved, scared of the violent radicalization  Greenwald pointed out that tech picked out a few people whom it made examples of as unacceptable:  Milo Yiannopoulos and Alex Jones.  I've read Milo's book, and it is not as "extreme" as everyone imagines.  A lot of it makes sense. David Hogg pretty much destroyed Jones. 

Greenwald also thinks major corporate media (outside of Fox) is pressuring policy makers to force platforms to censor, because corporate media doesn’t want to have to deal with the low-overhead competition.  It would appear that the companies might be overstretching their breches in the spirit of Section 230, which explains the focus of the GOP recently in trying to remove it (esp. Trump himself with the veto, see previous post). 

Wikipedia embed of Rio harbor, click for attribution 

Graham tweets about 230 after Trump signs Covid stimulus, but Fox video makes it looks like he will intro the sunset bill; WJLA7 reports NDAA override votes will happen

 

VA power plant, day trip alone ("socially distanced")

As reported on the Issues Blog, Trump suddenly decided to sign the Covid19 stimulus bill and government funding tonight.  The NDAA is still the wild card.

It is difficult to tell whether the override will go through as originally intended, from all the sources.  Senator Graham tweeted that Congress will reconsider Section 230 this week (instead of the override) as if to try to get a signature. But does Graham mean immediate deletion, or does he mean the two-year sunset?

A complete deletion of Section 230 this week would shock tech and no one is talking about it on the finance sites.  It really sounds more likely that Graham’s sunset provision will be introduced.

WJLA just said that the NDAA veto override would be attempted (I tweeted the station on this was to what was going on – did they just answer it?)

The Fox news interview is only a week old and it looks like Graham really will introduce the 2-year sunset on Monday or Tuesday and it is likely to pass.

  Update Dec 28:  The House voted to override, 322-87, a blowout, Monday night. 

Is Trump really trying to extort Congress into deleting Section 230 right now, before he signs anything? What it if all waits until Jan 20 (after the evictions start?)

 

lower Florida, 2017

Today, there is “loose lips” talk that suggests President Trump intends to veto everything until he leaves office unless Section 230 is “terminated” or deleted from law. ]

Some of this comes from reading Senator Lindsey Graham’s Twitter feed.  

However, the thread could also be read as implying that Graham and even Trump would accept a bill that sunsets 230 in January 2023 (the next Congress), and gives this Congress two years to reform it.

In a post Dec 24 I gave Graham’s link to the bill (it does not have a number yet).

On CNN this morning, one black member of Congress (didn’t get the name) hinted that he did not think Republicans would be willing to challenge Trump on Monday and that the override for NDAA would not happen. He suggested it would be kicked down the road until January 20, even though it would have to be reintroduced.

Yet other commentators are hinting that the president could refuse to sign anything unless Congress totally repeals 230 on Monday. 

That might be interpreted as bargaining one individuals in one tribe off against persons in another:  the millions of service people who have become unemployed due to pandemic lockdowns, against the “elite” Youtubers and techies who hide like “cowards”.  Let tech blow up, and shut everyone down (except the biggest corporate media giants as part of a state-capitalist system like China’s).  Let everybody suffer, and let everyone take their turn volunteering in the food lines (and for some people increasing their risk ofr COVID).  Coming from a Republican president, such thinking sounds not only Marxist, it is Maoist.   It has a moral parallel to the draft and deferments in the 1960s.  Trump says he hates China, but he seems to be recreating it here just to heal his ego.

It is simply about how much power your tribe has.

This is like Black Lives Matter (whose ideas, as interpreted for individuals, I support 100%) goading major social media users into supporting them publicly without realizing their Marxist connections.

Nancy Pelosi “promises” override next week in her statement, as linked on Twitter Dec. 23. 

Wall Street doesn’t seem to have noticed the scenario that could explode Monday, and the tech companies haven’t mentioned it (like how would they treat their hundreds of millions of users and stakeholders if Section230 were yanked away from them to satisfy Trump's oddly communist whim).  CNN has ambiguously hinted at it.  I wish Smerconish had been on today.  The major newspapers (WSJ, W Post and NYT) haven’t really played it up. 

I discussed the parameters for reforming 230, if we are allowed two more years to do it (not just one week) Thursday.  Mike Masnick’s summary on Techdirt deserves a reading.

It is mind-boggling what Trump has on Republicans who don’t go along with his most impetuous proposals.  What do these GOP-ers have to lose when he is gone?

Plenty of essays about race make it personal when demanding action

 

Here are a couple of tongue-lashings from Medium for Christmas Day, on what white people are expected to do about race.

Elyze Cizek writes, “Dear white friends. Please stop pretending you care. I see right through your #BlackLivesMatter posts. Stand up for what’s right. But first look in the mirror and see what’s wrong”.  Somewhere there is a comment about being unwilling to fall in love across racial lines.

Actually, some white people have paid homage to BLM without knowing about its connection to Marxism.

But it is true, that a lot of people don’t do enough about things they know are wrong, even when it costs them something.

Corinne Shutack lists “103 things white people can do for racial justice.”  Yes, she wants actual activity, not just blog posts like this one.

  Umair Haque admits a "painful and enraging essay" when he writes "White people, we minorities live in fear of you."

Senator Lindsey Graham offers a two-year sunset for Section 230, which Trump seems to buy

 

SCOTUS, 2019

Following up on the NDAA issue, The Hill reports that Senator Lindsey Graham has introduced a bill to sunset Section 230 as of January 1, 2023 (two years) unless Congress intervenes sooner to rewrite or repeal it (Graham's link).  

It is also reported that Trump will sign that. I’m surprised that the mainstream media is overlooking this. Well, really I'm not.  

So it sounds likely that this proposal will appear Monday before the House votes on the veto override.

One possible rewrite would be to replace the “first prong” (regarding “publisher”) with language making certain kinds of infrastructural companies “common carriers” like phone companies or cable.  This could apply to webhosts who do not normally monitor content, but only cancel accounts that break an Acceptable Use Policy (similar to Terms of Service but not quite the same).  AUP’s typically prohibit illegal content (like sex trafficking now), sometimes undesirable businesses like “online pharmacies”, weapons sales, escort services, and the like. But the companies normally only act when violations are reported.  They don’t censor on political beliefs or vague notions like “hate speech”. They do prohibit other behaviors like spam or generating DDOS’s, hacking, and the like. (Some advocates believe that hosts have some protection from the Prodigy and Compurserve decisions in the 1990s.) 

Social networking sites that make their moderation very minimal might conceivably have this classification, as well as blogging platforms like Blogger (this one) and Wordpress.  A recent “state of the Word” speech at Wordpress paid little heed to these problems.

But lawmakers still have to reckon with the observation that, until the mid 1990s, a “common carrier” only carried private or circumscribed traffic like phone calls or voicemail. You have to make a public policy decision that ungated user-generated content is eligible for this classification.

The argument for such a determination (appealing to conservatives and libertarians) would be that individualized speech tends to express more critical thinking (or has the potential to) and sometimes represents great achievement (like Avi Schiffmann’s coronavirus tracker).  Without that being permissible, we would not have such a product from a gifted teenager (who saw the pandemic coming before most governments, including the US, did).

The argument not to encourage this anymore is to suggest people need to work with others “where they are” before speaking and be more aware if they are responding to real needs.  It is a kind of Lefitst, indeed Marxist, argument.  They want people marching with them, not just filming and writing about them. 

We need to get this point.

Other than that, the real use of the web would be more structured, authoritative speech and commerce.  Unless I came up with something to sell in commercial volumes, I would no longer be allowed to have my own presence, as I do now.

There is another subtle point.  When you put yourself online, and others approach you to go to bat for them and join them "where they are" (often claiming intersectional oppression), your refusal to help the is suddenly taken as indirect “hate speech” – the science is violence theory on the Left.

Even the “free speech” sites and forums, and the blockchain sites, would be subject to this. 

Right now, I’m happy to put my three books online for free so people still find them.  In a copyright sense, I own them.  But because of the indirect societal effects of this freedom (that I can still neglect “them”) I just might not be allowed to.

Trump has until midnight to decide on NDAA veto; override sessions to start in House Dec 28 but procedurally complicated in Senate

 

US Army museum

Today Adam Smith (D-WA), head of the House Armed Services Committee, appeared on CNN and said that Trump has to midnight tonight to sign the NDAA (with no mention of Section 230). He promised that Congress would overturn the veto Dec 28 and 29 in this Congress. Here is Smith's tweet to Trump. 

The Hill (Rebecca Kjeel), a somewhat conservative publication, writes that the House will meet Dec 28.  There are some concerns about Republicans who are loyal to Trump maintaining the override. But Democrats could have other switchovers and are more willing to vote in absentia. There are some cloture issues in the Senate could delay the final vote right up to the wire on Sunday, January 3.

Politico has a simpler account by Connor O’Brien. 

Senator Rand Paul supports a veto for a different recent. Afghanistan. 

A failure to override would mean a bill needs to be reintroduced and renumbered into the next Congress.  While it sounds simple to just copy a bill’s text, the procedural hurdles are substantial, but presumably Biden could sign one the afternoon of January 20.

Could Congress just repeal Section 230 in one sentence to get a bill passed?  The unthinkable, perhaps. Like a "weakless universe". 

In any case, there is almost no talk of what tech companies would do immediately if Section 230 were suddenly yanked away from them.  A relevant question is how is this handled in the EU, and there is an e-commerce directive which is conceptually similar in protecting some platforms from downstream liability (source), but it is more limited with many takedowns mandatory (like a safe harbor). There is some discussion on a Wordpress blog of mine Dec. 17.  This should be compared to the controversy over the EU Copyright Directive.

Web hosting companies and operations like Google Blogger, Automattic Wordpress might at some point be viewed as “common carriers” but there is no law now saying that (there are court opinions from the 1990s before 230 that suggest this).  YouTube is closer to conventional social networking because of its algorithms.  The most vulnerable to loss of 230 would be Facebook, Twitter, Instagram, Snapchat, etc.  We don’t know if they would wholesale remove smaller users, because they might not have much of a business left. 

In any case, the hearings on Section 230 in October and November left the impression that Republicans and Democrats are far apart on what changes to 230 are needed.  Biden wants to get rid of 230 entirely, but will probably allow Congress to hash it out.  Biden may be under the impression that common carrier law protects web hosts now.

In general, we could very well see a climate where platforms and even hosts or carriers want users to show commercial viability, which is bad for users like me who work alone and have little interest in transactional commerce.  I would have to discuss how I would function in such an environment soon, but I have already said my own environment must be greatly simplified and reduced with my “doaskdotell” domain name expires in December 2021 (in less than one year).

Trump, as we know, also might veto the stimulus bill, as he wants a larger check to individuals, but that sounds much more benign.

I don’t think Trump has had a veto overridden yet.

Update:  Here is a WhiteHouse statement (with the veto -- see comment). Yahoo Finance included the quote (reprint of a Bloomberg article) and discusses smaller review sites and 230. 

A note about the "Felony Streaming Bill" adjacent to the CASE Act in the Spending Bill

 

Triton Park Chesapeake Bay

The “Lawful Masses with Leonard French” discusses the “Felony Streaming Bill” attached to the spending bill. It's a little hard to fish it out of a 5000 page document having bizarre provisions like the depiction of the Dalai Lama and misrepresentation of Smokey the Bear. 

Also attached are the CASE Act and a bill to prevent trolling by trademark applicants.

French believes that the felony penalties apply in practice to egregious streaming situations, such as where someone streams a large film before it is released, or perhaps a popular sporting event.

He does not think the provision will affect “fair use” of games. 

His video gave a nod to Richard Hoeg of Virtual Legality.

Also, Jason Kelly has Electronic Frontier Foundation's take on the passing of the CASE Act, a little bit exaggerated (again, can't the Copyright Office screen out trolls as plaintiffs?), and it links to a proposed Digital Copyrights Act (Tillis). which we'll look at later. 

Trump campaign still trying to pester SCOTUS; CASE Act is in Stimulus bill

 

SCOTUS

Jan Wolfe of Reuters reports that the Trump campaign will go to SCOTUS again and try to overturn the Pennsylvania election results on the basis of three decisions regarding mail-in ballots.  The story appeared on AOL, and curiously I couldn’t find it on Reuters.  CNN also has not mentioned it today.

(Dec 21 PM Livestream by RR Law group in Phoenix, link)   The underlying seems to be that the Pennsylvania courts did not have the right under Article 2 to change the election rules, only the Pennsylvania legislature did.  But the legislature could have worded the original laws to give courts and election officials some discretion. 

AG Bill Barr told CNN that there was no justification for the federal government to seize any voting machines or equipment.

Were Pennsylvania to be reversed, Biden would still have 286 electoral votes.

I wonder if YouTube will ban discussion of this latest frivolous action, based on its action on Safe Harbor Day Dec 8 (and that had nothing to do with DMCA Safe Harbor).

Also, now Peter Navarro has disturbing claims about Michigan, Washington Examiner story.  I can only say I've worked on elections in Virginia, rather low level, but this sort of thing as a premeditation sounds inconceivable.  Again, would YouTube ban a video about this now?  As an aside, I note that there is a Washington Examiner stand just outside a gay bar, Freddie's, in Arlington VA, and I wonder how many "conservative" gays there are to pick it up?  Maybe more than you think, as it is close to the Pentagon with military people. 

Update:

Congress has apparently included the CASE Act as well as another criminal copyright provision in the Stimulus bill.  I have written it up today with links on the "Major Issues blog'.  More details later. 

Social media deals with "medical misinformation" and cannot disconnect it from politics (and from genuine medicine)

 

US Army Museum (new)

Today, I saw Facebook posts from a friend (female, in a western state) about plans to carpool to DC for a ruckus for Trump on January 6.  She also made another large sign post claiming that the vaccines were experimental and that all we needed is hydroxychloroquine, as a prophylactic.

As for a balanced essay (Sept. 2020) on the science, look at David Adam’s contribution to Issues, “Who Believes in Hydroxychloroquine?”  The fact seems to be that really, no adequate trials have really been attempted correctly in the US, but in Europe (especially Italy) some doctors are claiming some success. There are theoretical reasons (having to do with acidity) why it might hinder replication of the virus, as it has in some test tubes.

Chris Martenson, who runs the Peak Prosperity website, has gotten two videos taken down from YouTube over advocacy of Ivermectin, but in fact he has quoted credible studies.  Yet Youtube considers it “medical misinformation”.  It is not, as it is simply trying to argue that the medical establishment needs to test it properly,.  (See Dec. 3 on the Issue blog).

There are various other proteins that have been found to stop SARS_CoV2 in a lab, and some of them could be the basis of designing prophylactic drugs.  Gay men claim Truvada is protecting them;  it probably isn’t – it’s living a lone and working from home that is.  But the same drug companies that make the HIV PrEP drug or protease inhibitors probably should be able to design biochemically related drugs that do interfere with the replication of the coronavirus.

"Martial law" keeps coming up behind closed doors; Stimulus Bill hung up on Federal Reserve, will it include CASE Act?

 

Capitol, Botanical Garden

The Trumpist just don’t stop the silliness, keeping the rest of us distracted.

What?  Martial law in swing states to rerun elections?  (Flynn?)  Sidney Powell??  The idea that Venezuela and Code Pink rigged the elections?  

The New York Times sums all this up. (Maggie Haberman et al).

Kevin Liptak writes it up on CNN, and Wolf Blitzer covered it tonight.  

The US Armed Forces do not get involved in elections (I would not be sure about National Guard).

Here is the latest, from the Washington Post, on the stimulus bill, and there is talk it could pass late tonight.

I don’t know whether it includes the CASE Act.  If it does, it will be important in January to get on the issue of stopping copyright trolls from using it.  YouTube’s idea of “commercial viability” might just come in handy.

The video that I embedded may be a bit over the top.

Is equity, as a demand of "social justice", inherently Marxist? Probably so, and this affects "social credit"

 

sunset 

Patrisse Cullors, filmmaker of the YouTubeOriginal series “Resist”, asks herself, “Am I a Marxist?”

She says, yes, but then talks about how social justice concerns impact the individual in vague terms.  David Rubin would not be impressed.

There is a forced speech problem.  Many prominent young adults online in various fields who are probably more on the moderate center-Left personally (not the identarian Left) have at times given in to posting “Black Lives Matter” symbols and black images on their sites as a sign of solidarity.  Now some of them wonder if they have been goaded into supporting Marxism (aka Communism) in public as a “requirement” for staying up.  I’m reminded of some marches in Washington DC where “Antifa” activists barged into outdoor restaurants and demanded that diners join their salutes.

“Critical theory” sounds like one end of a social justice see-saw. The other end is individual social credit, especially it the rules are drawn trying to enforce strict equity.  I grew up in a world where it was the obligation of the emerging adult to prove he was “worthy” (no need for pronoun sensitivities here), with things coming to a head with the male-only military draft and the student deferment system that hit men who didn’t do well in school..  It becomes incumbent on someone who was more privileged to give back something or else learn what it is like to  be unlucky himself.  We are urged to pay attention to “in need” when we are used to thinking about people as responsible for their own situations.  That hardly works now.  Indeed, if something bad happens to me because of someone else’s wrongdoing, it becomes a perverse kind of social justice.  It becomes especially indicative of individual moral character to share risks and common sacrifices when demanded.  My father used to say, “To obey is better than to sacrifice”.

Facebook weighs in, indirectly, on how Internet content should pay its own way

 

Apple HQ, Cupertino CA, 2018

Facebook is mad at Apple for a planned IOS change that would prevent platforms from using targeted ads based on tracking users, as CNN reports, Samantha Murphy Kelly.

Facebook argues that smaller companies will not be able to earn enough from their sites without paywalls (which won’t work anyway for new small companies).

This whole issue plays into my own “dangerous thought experiment” video that I’ve talked about before (look at the top of my doaskdotell.com home page).

At the same time, Texas, and some other states, is suing Google, complaining about monopolistic behavior with Facebook in order to control the online ad market, even in the face of antitrust activity to break up Facebook, WSJ story by Ryan Tracy and John F. McKinnon.

Would a Section 230 "repeal" affect only social media "platforms" and leave self-published websites alone?

 

Smallwood St Park MD "canyon"

Timothy B. Lee (writes for Arstechnica) just pointed out an interesting post by Steven Randy Waldman on his Interfluidity blog, “Repealing Section 230 as antitrust”. 

Waldman makes the case that hosting companies for regular sites is very different from running a social media “platform”. Indeed, he says, if you repealed 230, web hosts could still leave ordinary site owners alone as long as owner-users were identifiable (which breaks EFF’s idea of the right to anonymity) and hosts were absolutely neutral (regard them as “common carriers”).  He considers Blogger and Wordpress as “edge cases”, although Wordpress is typically installed on hosted sites.

There is still one difference between web hosting (or blog hosting) and a telephone carrier as in the past:  a website's content is, in theory, accessible anywhere in the world (maybe not China?) it is not blocked and normally searched.

That implies that people presume a right to globalized speech on their social and political views without supervision of others.  That is not necessarily constitutionally guaranteed (this point was argued with COPA in 2007), and many observers think it isn’t such a good thing not to have to please and work with others before you are heard.  The far Left, for example, wants to recruit more protesters and fundraisers, not more citizen journalists who don’t believe in intersectionality and hiding behind group oppression.

There is also a lot of underground thought that people should have their own global web presence only if they are serious about selling things, that is, have legitimate commerce (that pays rent and can even hire employees) to offer.  Now, I have an unusual history into how I got into “social commentary” (it started in the 1990s with gays in the military and my own history, and expanded circumferentially). I don’t have anything to sell (or pester people with emails or deals or beg for donations – but that’s how you play the game).  Maybe my music will work some day.  (And I do have a novel, and a screenplay, based on the books – which are old and not really viable to sell as a “real business” any longer). 

Lee has an earlier article, June 10, 2020, in Arstechnica as a full explainer of Section 230. “The Internet’s most important – and misunderstood – law, explained. 

Note the ACM’s forum on Section 230 from Nov. 23, 2020. I'll take a look at this one. 

Review again: what if you need an emergency home repair while you are quarantined?

 

too much clutter?

I still think that getting emergency home or condo repairs done during the pandemic if the resident is under isolation or quarantine is a serious topic.

There is surprisingly little that is recent written about it. ]

Here is a link from the UK, from Hyde Housing.  

Mostly, note that they ask the resident to move to another room and close the door.

There may be complications for apartments with someone living alone, in smaller apartments, or those where the Hvac does not replace the air.

There are lots of things that can break, especially heating or air conditioning or refrigeration. Some issues, like washing machines (get a washboard) or dishwashers could be worked around/

The emergence of rapid testing and much more efficiency could help.

So could vaccinating home repair persons early as essential workers.

Here is an article by the NLC Service Line Warranty Program. 

You might be expected to keep the bathroom and kitchen cleaned up for access to water (for washing) in addition to the area to be repaired (like a plumbing leak).

Redux on my "Privilege of Being Listened to"

 

Selma, AL 2014

We hear a lot today about people being unheard, not being listened to.  Indeed, “rioting is the language of the unheard”.

Yet, I have created minor uproars with a past essay (from 2005), “The Privilege of Being Listened To” (recent link from 2018 repost). The title of my third book (2014) reads “Free speech is a fundamental right, but being listened to is a privilege”.

I probably should call it a “conditional privilege”.  Rather like post privileges in Army Basic (in 1968).

What I meant by “privilege” was the capability to post something provocative, with no cost or competition to “get published” (as what that used to mean before the late 1990s) and be found by search engines or go viral on social media going around the world.

Bur we are also seeing demands from the “Left” that people meet their demands for reparative “allyship” before being allowed to be heard as individuals.  We see attacks on Section 230 from both sides, particularly because it seems to siphon individualized speech away from “legitimate” and necessary organizing.

You can see a reaction to this essay from a reader in Australia back in 2007 here.

If you look at a comment in June 2016 from “Carballosa” to Timothy B. Lee (now at Ars Technica) on his own site, you will see similar sentiment.

Congress considers making streaming copyrighted material a felony? Also CASE Act looks likely to pass

 

Michigan, covered bridge, 2012

Hoeg Law ("Virtual Legality") has a video Friday, Dec. 11,  “Streaming a Felony? On Twitch and Copyright Infringement”.

Senator Thom Tillis’s (R-NC)  “felony streaming policy” has apparently not been formally introduced yet, ‘

Nathan Grayson describes the proposal on Kokatu, and Protocol also has a brief description.

Hoeg’s main point is that US code already provides for criminal prosecution for copyright infringement, at a misdemeanor level.  You can go to jail for a year (however rarely this really happens!).  The proposal might enlarge the possible prison terms.  But the US DOJ generally is interested in prosecution only in the most egregious cases, on a large scale, associated with racketeering, trafficking, and other familiar crimes. That is not likely to change (under Biden).

The bill might become part of the “stimulus” next week, which is urgently needed for the enormous hardship and threatened evictions out there because of the lockdowns.

It is also likely that the CASE Act will pass as part of the package.  I have covered it before. It would probably take the Copyright Office most of 2021 to get up and start running its “Tribunal”, after publishing all the rules in the Federal Register.

What we would hope is that Copyright Office will have administrative protections against intentional trolling.

There is also the right to request a trial (you would have 60 days to respond).

But trolling of copyrighted material and patents is a tremendous problem.  It’s rather like selling debt. Generally, when someone offers intellectual property to the world but does not make money from selling it with their own operations, there is an invitation to problems.  That was a point of my “Dangerous Thought Experiment” video on my channel in April 2018.

Quantico creek, VA

UPDATE: Dec. 13:  

One idea might be for the Copyright Office to promulgate a policy prohibiting claims from those not making direct income from their said intellectual property.

 I don't know whether the law allows the Copyright Office to do this;  the Biden administration could request that kind of change if necessary. This echoes the "commercial viability" clause in YouTube's changes announced in Nov. 2019.  Generally, property owners can transfer the right to income to other parties, rather like selling debt or stock options.  But that is also a problem, as we know, with patent trolls. But it might be wise to prohibit claimants who have done this from using the CASE Act. This also remind me of the hidden controversy about political websites whose funding is not transparent, an issue I have often discussed before.   Mike Masnick discusses the possible "unconstitutionality of the CASE Act on Techdirt Dec. 1. 

FTC and 48 states file massive anti-trust lawsuit(s) against Facebook and want to break off Instagram and WhatsApp

 

Facebook HQ, Menlo Park CA, my trip, 2018

Hoeg Law has a detailed video (53 minutes) on the FTC’s lawsuit against Facebook trying to force it to sell off Instagram and Whatsapp.  Hoeg thinks the suit is weak.  48 out of 50 state attorneys journal have also sued. There is a supporting story on ABC News, and Hoeg also links to a pdf of the complaint. 

The Sherman Anti-Trust (we study it in high school US history class) is the heart of the matter, and deliberately monopolizing is a “felony”. But this usually requires accompanying “anti-competitive conduct”.

Hoeg says that 2/3 of the claims brought before the FTC are weak.

There are questions about which kinds of conduct are exclusionary, particularly in building API’s.

Facebook, when banning users, has often banned them from Instagram at the same time, so the effect is to give Facebook more power over user speech.  In some cases of deplatformings, Twitter has removed the same users simultaneously without explanation (remember the Facebook Purge 3.0 in the fall of 2018).

Commentators (even me) have created a "publisher or platform" dichotomy in Section 230 -- and that split doesn't exist!

Post-election "Trumpist" protest

 

David Greene has a major article at Electronic Frontier Foundation explaining how the distinction of “publisher of platform” has been incorrectly cited, often on Twitter, even by me, when criticizing YouTube’s of Facebook’s removal or editing of content (placing of disclaimers) most recently with respect to the elections and Trump’s outrageous battle in the courts (even post “safe harbor day”).  There has also been a lot of “censorship” of COVID-related content, sometimes discussions of other medications that should really not be shut down just because of uncertainty or lack of establishment support.  Greene’s article is “Publisher or Platform? It Doesn’t Matter”. 

The 26 words, remember, were “No provider or user of an interactive computer service shall be treated as the publisher or speaker of information provided by another information content provider.”

The wording doesn’t say “platform”.

Two important concepts explained in Greene’s article are “republisher” and “distributor”.  Generally, a republisher is still a publisher and a distributor is like a bookstore.  A service that does not alter content might be somewhere in between (like a webhost), more like a distributor if it does not know of actual libelous content.

But according to the lawyers, YouTube still has Section 230 protection if it removes post-election “misinformation” or even if it labels it and leave it up.  It may be a bit of a stretch that talking about minor errors in an election might get it banned, or that talking about a controversial but unproven medication for COVID gets removed, but it seems to be within protection as it now stands

YouTube will remove videos claiming that a president won an election with unsubstantiated claims; do community strikes after Jan. 20; Section 230 implications?

 

Washington DC Mall

Makena Kelly reports for The Verge that YouTube will take down videos which question that Joe Biden won the election, with claims of fraud in various swing states, since the “safe harbor” day of December 8, 2020 (no connection to the DMCA!) has past with the Supreme Court dismissing all of Trump’s allegedly unfounded claims (“Stop the Steal”). 

The YouTube blog introduces the policy with some bombast and regality ("Supporting the U.S. 2020 Election"), link.  YouTube will give strikes for such content uploaded after Jan 20, 2021, regarding fraud in Biden’s election. 

Ford Fischer has asked on Twitter whether the policy refers to “past elections” in foreign countries, like Venezuela or Belarus (Hoeg Law says this applies only to US presidential elections at about the 6 minute mark, think about Bush v. Gore in 2000). .

Lawyers say that the prong 2 of Section 230 is not violated (Hoeg) on its face.  But YouTube’s policy as states sounds like

There is a problem that “acknowledging errors” in a past election is not the same as claiming fraud.

Karlyn Borysenko has an interesting discussion. 

House, then Senate to move on CDA230; override sounds likely; if 230 were scrapped suddenly, what would tech companies do? Platforms and web hosts are very different!

 

DC Metro mask policy

Politico reports (Connor O’Brien) that Congress is moving on the NDAA issue this week and that Trump is setting up a confrontation with sponsor Jim Inhofe (R-OK) over Inhofe’s refusal to add a provision regarding repealing Section 230.  It’s noteworthy that Inhofe says he opposes 230 (at least as written) but it has nothing to do with a defense bill. 

CNN said this morning that the House might vote Tuesday, on a bill that makes no mention of 230.  It sounds like it would pass by an override majority (2/3). It might go to the Senate quickly, where it is less clear that there is an override majority. McConnell is known to be averse to introducing bills which

If it is not passed in this session, it has to be reintroduced in January.

There seem to be two problems among conservative Republicans; (1) social media platform of “conservative” speech, which the platforms deny (2) insults to the commander in chief (which authoritarian leaders see as an invitation for enemies to attack;  Democrats are more worried about “hate speech” or even “hurtful” (Angela Merkel saying your broadcasting your opinion on your own does not come with ‘zero consequences’), even well-intended reporting of matters (like militia groups) that less intact people will not be able to grasp in the right context without feeling radicalized. The two hearings (Oct 28 and Nov 10) were quite contentious.

Greg Steube may have a point in his compromise bill, toward the end of the Newsmax video.

It seems almost unthinkable how the tech industry would react to Section 230 being yanked right out from under them as a political stunt. They could cancel a lot of accounts that are not “commercially viable” (able to earn revenue) and for speech only, and greatly reduce the size of their business, as a hardship sacrifice similar to that of other industries during the pandemic. But there is nothing that really makes a lot of sense if thought through.

It’s unclear how webhosts would be affected, because they don’t moderate content and might get by on a couple of decisions in the 90s (Prodigy and Compuserve). A service like Blogger is similar to a hosted site in that Google does not moderate or modify blog content (very different from social media like twitter or Facebook). You could also look at a YouTube channel that way.  Youtube does mess with monetization arbitrarily, and faces separate new problems in the EU over the copyright directive. It might remove smaller accounts (like mine) with no commercial future, or give creators a certain amount of time to establish a legitimate commercial presence.  On the other hand, it could look at accounts that have no history of “strikes” or complaints more favorably.

I’m not sure how Google makes money with Blogger, the platform this post is on.  It stopped Google+ rather abruptly in April 2019.  But it has recently revamped and replaced the editor (with a Guttenberg-style look), which would sound like a good sign it intends to keep it.  Back ten years ago, after various blogs were removed as “spam” somewhat arbitrarily, I wondered if it would be stable, but it has been.  At one time, it required captcha’s to update posts but stopped that with me around 2008. 

Update: Dec. 8:   The House passed the NDAA today 335-78-1 by a veto-proof majority, ABC News story. 

Note: Electronic Frontier Foundation warns that Case Act is attached to stimulus bill. 

Alito (SCOTUS) seems to keep Pennsylvania in play for Trump

 

Happy Valley, Penn State, 2010

Justice Alito has forwarded a date for a challenge to Pennsylvania’s mail-in law to early Dec. 8, now on the same day as the safe harbor for states to certify their electors.

Previous analysis indicated that a date of Dec 9 was too late, but that Alito might be interested in the constitutionality of Pennsylvania’s Act 77.

There have been questions raised earlier. In some states, administrators have allowed more mail-in ballots than state laws explicitly specify (because of pandemic)m which might invite an Article 2 challenge. But here the issue might be that the Pennsylvania constitution needs amendment to change the mail-in.

The Washington Examiner (Anthony Leonardi) now reports  that the challenge must be filed Dec 8, in time for safe harbor and a quick ruling.

Were Pennsylvania’s 20 electoral votes to be lost to Trump, and Georgia’s 16 (through a however improbable attempt to throw it to the legislature), Biden would still have 270 electoral votes.

Update: Dec 8

SCOTUS rebuffed Trump's Pennsylvania gambit today, Yahoo! account. Rick Hasen poohs the litigation in his election log blog. 

But the Texas attorney general Ken Paxton sued four states (WI, GA, PA, MI) at SCOTUS to have the electoral votes for those states thrown out (or moved to House of Representatives), Texas Tribune reports.