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  34. <title>Biden Signs TikTok Ban Bill; Expect A Lawsuit By The Time You Finish Reading This Article</title>
  35. <link>https://www.techdirt.com/2024/04/24/biden-signs-tiktok-ban-bill-expect-a-lawsuit-by-the-time-you-finish-reading-this-article/</link>
  36. <comments>https://www.techdirt.com/2024/04/24/biden-signs-tiktok-ban-bill-expect-a-lawsuit-by-the-time-you-finish-reading-this-article/#comments</comments>
  38. <dc:creator><![CDATA[Mike Masnick]]></dc:creator>
  39. <pubDate>Wed, 24 Apr 2024 19:05:09 +0000</pubDate>
  40. <category><![CDATA[bytedance]]></category>
  41. <category><![CDATA[tiktok]]></category>
  42. <category><![CDATA[1st amendment]]></category>
  43. <category><![CDATA[china]]></category>
  44. <category><![CDATA[joe biden]]></category>
  45. <category><![CDATA[social media]]></category>
  46. <category><![CDATA[tiktok ban]]></category>
  47. <guid isPermaLink="false">https://www.techdirt.com/?p=436882</guid>
  48.  
  49. <description><![CDATA[Get your dance moves on now, as TikTok may be going away. Okay, it’s not going away that quickly and quite possibly isn’t going away at all, but President Biden signed the bill this morning that requires ByteDance to divest itself from TikTok, or have the app banned from the Apple and Google app stores. [&#8230;]]]></description>
  50. <content:encoded><![CDATA[<p>Get your dance moves on now, as TikTok may be going away. Okay, it’s not going away that quickly and quite possibly isn’t going away at all, but <a href="https://www.npr.org/2024/04/24/1246663779/biden-ban-tiktok-us" target="_blank" rel="noreferrer noopener">President Biden signed the bill this morning</a> that requires ByteDance to divest itself from TikTok, or have the app banned from the Apple and Google app stores.</p>
  51. <p>The law gives ByteDance 12 months to divest, but in all likelihood sometime today or tomorrow, TikTok will file a well-prepared lawsuit with high-priced lawyers challenging the law on a variety of different grounds, including the First Amendment.</p>
  52. <p>As you’ve probably heard, the bill was tacked on to a foreign aid funding bill, and there was no way the President wasn’t going to sign that bill. But even as ridiculous as it is to tack on a TikTok ban to foreign spending support, Biden had made it clear he supported the TikTok ban anyway. Still, it does seem notable that, when signing the bill, Biden didn’t even mention the TikTok ban in <a target="_blank" rel="noreferrer noopener" href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2024/04/24/remarks-by-president-biden-on-the-passage-of-h-r-815-the-national-security-supplemental/">his remarks</a>.</p>
  53. <p>We’ve discussed this a few times before, but the move to ban TikTok is particularly stupid. It <a target="_blank" rel="noreferrer noopener" href="https://www.techdirt.com/2024/04/19/the-us-banning-tiktok-would-play-right-into-chinas-hands-and-destroy-decades-of-us-work-on-promoting-an-open-internet/">demonstrates American hypocrisy</a> regarding its advocacy for an open internet. It goes against basic First Amendment principles. It overreacts to a <a target="_blank" rel="noreferrer noopener" href="https://www.techdirt.com/2024/04/18/no-tiktok-is-not-programmable-fentanyl-stop-it/">basic moral panic</a>. And it does <a target="_blank" rel="noreferrer noopener" href="https://www.techdirt.com/2024/03/14/once-more-with-feeling-banning-tiktok-is-unconstitutional-wont-do-shit-to-deal-with-any-actual-threats/">fuck all</a> to stop the actual threats that people justifying the ban talk about (surveillance and manipulation/propaganda).</p>
  54. <p>It’s particularly stupid to do this now, just as Congress was <em>finally</em> willing to <a target="_blank" rel="noreferrer noopener" href="https://www.techdirt.com/2024/04/23/any-privacy-law-is-going-to-require-some-compromise-is-apra-the-right-set-of-tradeoffs/">explore a comprehensive privacy bill</a>.</p>
  55. <p>The NY Times has a big article about the “<a href="https://www.nytimes.com/2024/04/24/technology/tiktok-ban-congress.html?unlocked_article_code=1.m00.YhM8.p5gRe-XepFRE&amp;smid=nytcore-ios-share&amp;referringSource=articleShare&amp;sgrp=c-cb" target="_blank" rel="noreferrer noopener">behind the scenes negotiations</a>” that resulted in this bill that (bizarrely) makes it sound like the TikTok bill is an example of Congress working well:</p>
  56. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  57. <p><em>For nearly a year, lawmakers and some of their aides worked to write a version of the bill, concealing their efforts to avoid setting off TikTok’s lobbying might. To bulletproof the bill from expected legal challenges and persuade uncertain lawmakers, the group worked with the Justice Department and White House.</em></p>
  58. <p><em>And the last stage — a race to the president’s desk that led some aides to nickname the bill the “Thunder Run” — played out in seven weeks from when it was publicly introduced, remarkably fast for Washington.</em></p>
  59. </blockquote>
  60. <p>This leaves out some fairly important elements, including powerful lobbying by companies like Meta (who were clearly threatened by TikTok) to <a target="_blank" rel="noreferrer noopener" href="https://www.techdirt.com/2022/03/31/facebook-hired-pr-firm-coordinated-anti-tiktok-campaign-to-spread-bogus-moral-panics/">spread a moral panic about the app</a>. It also leaves out <a target="_blank" rel="noreferrer noopener" href="https://www.techdirt.com/2024/03/28/when-it-comes-to-tiktok-hyperventilation-financial-conflicts-of-interest-abound/">the massive financial conflicts</a> of many of the lawmakers who pushed for this bill.</p>
  61. <p>Either way, the bill is going to get challenged and quickly. Previous attempts to ban TikTok (one by <a target="_blank" rel="noreferrer noopener" href="https://www.techdirt.com/2020/09/28/judge-rejected-ban-tiktok-because-trumps-doj-cant-show-any-real-national-security-threat/">former President Trump</a> and <a target="_blank" rel="noreferrer noopener" href="https://www.techdirt.com/2023/12/01/judge-says-montanas-tiktok-ban-is-obviously-unconstitutional/">one by Montana</a>) were both rejected as violations of the First Amendment.</p>
  62. <p>While this bill is written more carefully to try to avoid that fate, it’s all a smokescreen, as the underlying concerns still very much implicate the First Amendment. The only real question is whether or not the outrage and moral panic about “CHINA CONTROLS THIS APP!!!!” will lead judges to make exceptions in this case.</p>
  63. <p>The bill still has fundamental free speech problems. First of all, banning users from accessing content raises serious First Amendment questions. Second, requiring an app store to stop offering an app raises different First Amendment questions. Yes, there are cases when the US can force divestiture, but the remedies in this bill raise serious concerns and would create a very problematic precedent allowing future Presidents to effectively ban apps they dislike or possibly force their sale to “friends.” And that’s not even getting into what it does in terms of justifying censorship and app banning elsewhere.</p>
  64. ]]></content:encoded>
  66. <wfw:commentRss>https://www.techdirt.com/2024/04/24/biden-signs-tiktok-ban-bill-expect-a-lawsuit-by-the-time-you-finish-reading-this-article/comments/feed/</wfw:commentRss>
  67. <slash:comments>13</slash:comments>
  70. <post-id xmlns="com-wordpress:feed-additions:1">436882</post-id> </item>
  71. <item>
  72. <title>DeSantis Signs Law Limiting Book Challenges After The Shitty People He Encouraged To Be Shitty Proved To Be Even Shittier Than He Thought They&#8217;d Be</title>
  73. <link>https://www.techdirt.com/2024/04/24/desantis-signs-law-limiting-book-challenges-after-the-shitty-people-he-encouraged-to-be-shitty-proved-to-be-even-shittier-than-he-thought-theyd-be/</link>
  74. <comments>https://www.techdirt.com/2024/04/24/desantis-signs-law-limiting-book-challenges-after-the-shitty-people-he-encouraged-to-be-shitty-proved-to-be-even-shittier-than-he-thought-theyd-be/#comments</comments>
  76. <dc:creator><![CDATA[Tim Cushing]]></dc:creator>
  77. <pubDate>Wed, 24 Apr 2024 17:50:40 +0000</pubDate>
  78. <category><![CDATA[1]]></category>
  79. <category><![CDATA[1st amendment]]></category>
  80. <category><![CDATA[book bans]]></category>
  81. <category><![CDATA[florida]]></category>
  82. <category><![CDATA[ron desantis]]></category>
  83. <guid isPermaLink="false">https://www.techdirt.com/?p=436676&#038;preview=true&#038;preview_id=436676</guid>
  84.  
  85. <description><![CDATA[Florida&#8217;s governor, Ron DeSantis, and Florida&#8217;s legislature have combined forces to craft and pass some of the most unconstitutional laws ever written in the United States. A series of bad laws has led to series of injunctions from federal courts, including one that traveled all the way to the Supreme Court just to have the [&#8230;]]]></description>
  86. <content:encoded><![CDATA[<p>Florida&#8217;s governor, Ron DeSantis, and Florida&#8217;s legislature have combined forces to craft and pass some of the most unconstitutional laws ever written in the United States. A series of bad laws has led to series of injunctions from federal courts, including one that traveled all the way to the Supreme Court just to have the First Amendment reaffirmed <a href="https://www.techdirt.com/2023/11/21/floridas-anti-drag-law-loses-the-big-one-supreme-court-says-block-on-unconstitutional-law-can-remain-in-place/" data-type="link" data-id="https://www.techdirt.com/2023/11/21/floridas-anti-drag-law-loses-the-big-one-supreme-court-says-block-on-unconstitutional-law-can-remain-in-place/">by the top court in the land</a>. </p>
  87. <p>It&#8217;s a campaign of hate. The laws, without exception, target either people the governor and his legislative fanbois don&#8217;t like (a lot of this <a href="https://www.techdirt.com/2023/11/21/floridas-anti-drag-law-loses-the-big-one-supreme-court-says-block-on-unconstitutional-law-can-remain-in-place/" data-type="link" data-id="https://www.techdirt.com/2023/11/21/floridas-anti-drag-law-loses-the-big-one-supreme-court-says-block-on-unconstitutional-law-can-remain-in-place/">targets LGBTQ+ people</a>) or people who don&#8217;t like DeSantis or his legislative fanbois (hence all the legislation <a href="https://www.techdirt.com/2021/06/30/as-expected-judge-grants-injunction-blocking-floridas-unconstitutional-social-media-law/" data-type="link" data-id="https://www.techdirt.com/2021/06/30/as-expected-judge-grants-injunction-blocking-floridas-unconstitutional-social-media-law/">targeting social media services</a> which don&#8217;t find it all that profitable to host hateful content).</p>
  88. <p>Like other states with the <a href="https://www.techdirt.com/2024/01/24/after-inexplicably-allowing-unconstitutional-book-ban-to-stay-alive-for-six-months-the-fifth-circuit-finally-shuts-it-down/" data-type="link" data-id="https://www.techdirt.com/2024/01/24/after-inexplicably-allowing-unconstitutional-book-ban-to-stay-alive-for-six-months-the-fifth-circuit-finally-shuts-it-down/">same set of bad ideas and worse legislators</a>, Florida has turned libraries into battlefields where the First Amendment matters less than the petty outrage of people who can&#8217;t stand to have any ideas they don&#8217;t agree with given shelf space. Book challenges are the new normal in far too many places in the United States. </p>
  89. <p>But Florida leads the way by a large margin. <a href="https://www.npr.org/2024/04/16/1245037718/book-bans-2023-pen-america" data-type="link" data-id="https://www.npr.org/2024/04/16/1245037718/book-bans-2023-pen-america">According to stats gathered by PEN America</a>, Florida has served up more than three-quarters of the nation&#8217;s book bans over the last six months of 2023.</p>
  90. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  91. <p><em>The vast majority of school book bans occurred in Florida, with 3,135 bans across 11 of the state&#8217;s school districts. A spokesperson with Florida&#8217;s Department of Education declined NPR&#8217;s request for comment.</em></p>
  92. </blockquote>
  93. <p>Across the nation, 4,349 book bans were reported over that same period. And that six month period produced more book bans than the entirety of 2022. </p>
  94. <p>Apparently, that&#8217;s beginning to be a bit of a problem for the state that leads the nation in book challenges. Realizing that most challenges are filed by just a handful of extremely petty people with far too much time and ideology on their hands (the NPR report notes a single Wisconsin parent was responsible for 444 book challenges), <a href="https://www.politico.com/news/2024/04/16/desantis-book-challenge-law-00152515" data-type="link" data-id="https://www.politico.com/news/2024/04/16/desantis-book-challenge-law-00152515">DeSantis is now trying to unreap at least part of the harvest he has sown</a>. </p>
  95. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  96. <p><em>Florida residents who don’t have children attending school will have significantly fewer chances to challenge books in local K-12 libraries under a new law signed Tuesday by Gov. Ron DeSantis.</em></p>
  97. <p><em>Meant to curb what lawmakers described as a “logistical nightmare” facing school districts flooded with requests to remove books, the policy marks an admission from Republican leaders that last year’s expansions to book challenge laws may have gone too far after national backlash from free speech groups and even some conservatives.</em></p>
  98. </blockquote>
  99. <p>We&#8217;ll see if this actually deters the book ban overachievers from filing challenges as quickly as they can change the To: field in their form letters. Somehow, I think this will just encourage a lot of &#8220;straw&#8221; challenges from people who either don&#8217;t exist or don&#8217;t realize some shitty sociopath is using their name to engage in ideological warfare with ideas and content they don&#8217;t like. </p>
  100. <p>This would all be stupid enough if it weren&#8217;t for the statements made by DeSantis when signing this bill into law. </p>
  101. <p>All of it is disingenuous. First, DeSantis pretends it isn&#8217;t just the shittiest members of his voter base that are responsible for having to legislate a claw-back on book challenges.</p>
  102. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  103. <p><em>In backing the idea, DeSantis said Florida wants to stamp out frivolous challenges as “activists” from “all ends of the political spectrum” are objecting to “everything under the sun.”</em></p>
  104. </blockquote>
  105. <p>It&#8217;s the Trumpian &#8220;fine people on both sides&#8221; tactic but in reverse. And it&#8217;s bullshit. Let&#8217;s go back and check the data gathered by PEN:</p>
  106. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  107. <p><em>Those who ban books often cite &#8220;obscenity law and hyperbolic rhetoric about &#8216;porn in schools&#8217; to justify banning books about sexual violence and LGBTQ+ topics (and in particular, trans identities),&#8221; the report says.</em></p>
  108. </blockquote>
  109. <p>That doesn&#8217;t sound like &#8220;all ends of the political spectrum.&#8221; That sounds like one very narrow end of the political spectrum &#8212; the end containing the narrowest minds. </p>
  110. <p>Then there&#8217;s this bit of chastisement, which should have provoked open laughter from every journalist in attendance: </p>
  111. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  112. <p><em>“Schools are there to serve the community,” DeSantis said Monday during an event touting the legislation. “Schools are not there for you to try to go on some ideological joyride at the expense of our kids.”</em></p>
  113. </blockquote>
  114. <p>Holy fuck, Ron! Your <em>entire</em> <em>state</em> is little more than an ideological joyride, at least since you&#8217;ve taken office. Your legislature &#8212; with few exceptions &#8212; does nothing more than craft more rides for your ideological playground. You and your buddies in the legislature <em>directly</em> encouraged this sort of bullshit from your constituents. And now you want to pretend you&#8217;re somehow above it all?! </p>
  115. <p>You created this shitstorm, Ron. I guess we can all feel thankful you at least feel bad enough about it to show up with a tarp, even though pretty much everything is already covered in feces. But you should be fine moving forward. I would assume the legislators on your side of the aisle that approved this bill have used up whatever last vestiges of shame they contained. This isn&#8217;t a sign of hope. It&#8217;s just the last plateau before everything resumes its usual downhill course.</p>
  116. ]]></content:encoded>
  118. <wfw:commentRss>https://www.techdirt.com/2024/04/24/desantis-signs-law-limiting-book-challenges-after-the-shitty-people-he-encouraged-to-be-shitty-proved-to-be-even-shittier-than-he-thought-theyd-be/comments/feed/</wfw:commentRss>
  119. <slash:comments>18</slash:comments>
  122. <post-id xmlns="com-wordpress:feed-additions:1">436676</post-id> </item>
  123. <item>
  124. <title>Daily Deal: The Premium Python Programming PCEP Certification Prep Bundle</title>
  125. <link>https://www.techdirt.com/2024/04/24/daily-deal-the-premium-python-programming-pcep-certification-prep-bundle/</link>
  126. <comments>https://www.techdirt.com/2024/04/24/daily-deal-the-premium-python-programming-pcep-certification-prep-bundle/#respond</comments>
  128. <dc:creator><![CDATA[Gretchen Heckmann]]></dc:creator>
  129. <pubDate>Wed, 24 Apr 2024 17:45:40 +0000</pubDate>
  130. <category><![CDATA[1]]></category>
  131. <category><![CDATA[daily deal]]></category>
  132. <guid isPermaLink="false">https://www.techdirt.com/?p=436876&#038;preview=true&#038;preview_id=436876</guid>
  133.  
  134. <description><![CDATA[The Premium Python Programming PCEP Certification Prep Bundle has 12 courses to help you become an expert Python coder. Courses cover everything from app creation to AI and machine learning. It&#8217;s on sale for $35. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps [&#8230;]]]></description>
  135. <content:encoded><![CDATA[<p>The <a href="https://deals.techdirt.com/sales/the-2022-premium-python-programming-pcep-certification-prep-bundle?utm_campaign=affiliaterundown">Premium Python Programming PCEP Certification Prep Bundle</a> has 12 courses to help you become an expert Python coder. Courses cover everything from app creation to AI and machine learning. It&#8217;s on sale for $35. </p>
  136. <div class="wp-block-image is-style-default">
  137. <figure class="aligncenter size-large"><a href="https://deals.techdirt.com/sales/the-2022-premium-python-programming-pcep-certification-prep-bundle?utm_campaign=affiliaterundown"><img decoding="async" src="https://i0.wp.com/cdnp3.stackassets.com/772ae8302ffe6d16415f7ef2900ef0bbfaa5d80b/store/446df882eaad27a14cb66ebc0cb313da9d33d02b5d545b59af36ed1fb73a/product_322457_product_shots1.jpg?ssl=1" alt="" data-recalc-dims="1"/></a></figure>
  138. </div>
  139. <p><em>Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.</em></p>
  140. ]]></content:encoded>
  142. <wfw:commentRss>https://www.techdirt.com/2024/04/24/daily-deal-the-premium-python-programming-pcep-certification-prep-bundle/comments/feed/</wfw:commentRss>
  143. <slash:comments>0</slash:comments>
  146. <post-id xmlns="com-wordpress:feed-additions:1">436876</post-id> </item>
  147. <item>
  148. <title>FTC Bans Non-Competes, Sparks Instant Lawsuit: The War For Worker Freedom</title>
  149. <link>https://www.techdirt.com/2024/04/24/ftc-bans-non-competes-sparks-instant-lawsuit-the-war-for-worker-freedom/</link>
  150. <comments>https://www.techdirt.com/2024/04/24/ftc-bans-non-competes-sparks-instant-lawsuit-the-war-for-worker-freedom/#comments</comments>
  152. <dc:creator><![CDATA[Mike Masnick]]></dc:creator>
  153. <pubDate>Wed, 24 Apr 2024 16:31:55 +0000</pubDate>
  154. <category><![CDATA[ryan llc]]></category>
  155. <category><![CDATA[administrative state]]></category>
  156. <category><![CDATA[ftc]]></category>
  157. <category><![CDATA[innovation]]></category>
  158. <category><![CDATA[major questions doctrine]]></category>
  159. <category><![CDATA[non-competes]]></category>
  160. <category><![CDATA[section 5 authority]]></category>
  161. <category><![CDATA[supreme court]]></category>
  162. <guid isPermaLink="false">https://www.techdirt.com/?p=436864</guid>
  163.  
  164. <description><![CDATA[This is a frustrating article to write. The FTC has come out with a very good and important policy ruling, but I’m not sure it has the authority to do so. The legal challenge (that was filed basically seconds after the rule came out) could do way more damage not just to some fundamental parts [&#8230;]]]></description>
  165. <content:encoded><![CDATA[<p>This is a frustrating article to write. The FTC has come out with a very good and important policy ruling, but I’m not sure it has the authority to do so. The legal challenge (that was filed basically seconds after the rule came out) could do way more damage not just to some fundamental parts of the administrative state, but to the very underlying policy that the FTC is trying to enact: protecting the rights of workers to switch jobs and not be effectively tied to an employer in modern-day indentured servitude with no realistic ability to leave.</p>
  166. <p>All the way back in 2007, I wrote about how non-competes <a target="_blank" rel="noreferrer noopener" href="https://www.techdirt.com/2007/12/05/noncompete-agreements-are-the-drm-of-human-capital/">were the DRM of human capital</a>. They were an artificial manner of restricting a basic freedom, and one that served no real purpose other than to make everything worse. As I discussed in that post, multiple studies done over the previous couple of decades had more or less shown that non-competes are a <em>tremendous</em> drag on innovation, to the point that some argue (strongly, with data) that Silicon Valley would not be Silicon Valley if not for the fact that California has deemed non-competes unenforceable.</p>
  167. <p>The evidence of non-competes being harmful to the market, to consumers, and to innovation is overwhelming. It’s not difficult to understand why. Studies have shown that locking up information tends to be harmful to innovation. The big, important, innovative breakthroughs happen when information flows freely throughout an industry, allowing different perspectives to be brought into the process. Over and over again, it’s been shown that those big breakthroughs come when information is shared and multiple companies are trying to tackle the underlying problem.</p>
  168. <p>But you don’t want companies colluding. Instead, it’s much better to simply ban non-competes, as it allows workers to switch jobs. This allows for more of a free flow of information between companies, which contributes to important innovations, rather than stagnant groupthink. The non-competes act as a barrier to the free flow of information, which holds back innovation.</p>
  169. <p>They’re really bad. It’s why I’ve long supported states following California’s lead in making them unenforceable.</p>
  170. <p>And, of course, once more companies realized the DRM-ish nature of non-competes, they started using them for more and more evil purposes. This included, somewhat infamously, <a href="https://www.nytimes.com/2021/09/29/opinion/noncompete-agreement-workers.html" target="_blank" rel="noreferrer noopener">fast food workers</a> being forced to sign non-competes. Whatever (weak) justification there might be for higher-end knowledge workers to sign non-competes, the idea of using them for low-end jobs is pure nonsense.</p>
  171. <p>Non-competes <em>should</em> be banned.</p>
  172. <p>But, when the FTC proposed banning non-competes last year, I <a target="_blank" rel="noreferrer noopener" href="https://www.techdirt.com/2023/01/06/ftc-proposes-banning-non-competes-which-would-unleash-innovation/">saw it as a mixed bag</a>. I 100% support the policy goal. Non-competes are actively harmful and should not be allowed. But (1) I’m not convinced the FTC actually has the authority to ban them across the board. That should be Congress’ job. And, (2) with the courts the way they are today, there’s a very high likelihood that any case challenging such an FTC rule would not just get tossed, but that the FTC may have its existing authority trimmed back even further.</p>
  173. <p>Yesterday, the FTC issued its <a target="_blank" rel="noreferrer noopener" href="https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes">final rule on non-competes</a>. The rule bans all new non-competes and voids most existing non-competes, with the one exception being existing non-competes for senior executives (those making over $151,164 and who are in “policy-making positions”).</p>
  174. <p>The rule is 570 pages long, with much of it trying to make the argument for why the FTC actually has this authority. And all those arguments are going to be put to the test. Very shortly after the new rule dropped (long before anyone could have possibly read the 570 pages), a Texas-based tax services company, Ryan LLC, <a href="https://storage.courtlistener.com/recap/gov.uscourts.txnd.389064/gov.uscourts.txnd.389064.1.0.pdf" target="_blank" rel="noreferrer noopener">filed a lawsuit</a>.</p>
  175. <p>The timing, the location, and the lawyers all suggest this was clearly planned out. The case was filed in Northern Texas. It was not, as many people assumed, assigned to judicial shopping national injunction favorite Matthew Kacsmaryk. Instead, it went to Judge Ada Brown. The law firm filing the case is Gibson Dunn, which is one of the law firms you choose when you’re planning to go to the Supreme Court. One of the lawyers is Gene Scalia, son of late Supreme Court Justice Antonin Scalia.</p>
  176. <p>Also notable, as <a target="_blank" rel="noreferrer noopener" href="https://bsky.app/profile/jdotj.bsky.social/post/3kqtoi2efef2i">pointed out by a lawyer on Bluesky</a>, is that the General Counsel of Ryan LLC <a target="_blank" rel="noreferrer noopener" href="https://ryan.com/about-ryan/leadership/john-smith/">clerked for Samuel Alito</a> (before Alito went to the Supreme Court) and is married to someone who <a target="_blank" rel="noreferrer noopener" href="https://www.iclrs.org/blurb/hannah-clayson-smith-2/">clerked for both Justices Alito and Thomas</a>. She also testified before the Senate in support of Justice Gorsuch during his nomination.</p>
  177. <p>The <a target="_blank" rel="noreferrer noopener" href="https://storage.courtlistener.com/recap/gov.uscourts.txnd.389064/gov.uscourts.txnd.389064.1.0.pdf">actual lawsuit</a> doesn’t <em>just</em> seek to block the rule. It is basically looking to destroy what limited authority the FTC has. The main crux of the argument is on more firm legal footing, claiming that this rule goes beyond the FTC’s rulemaking authority:</p>
  178. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  179. <p><em>The Non-Compete Rule far exceeds the Commission’s authority under the FTC Act. The Commission’s claimed statutory authority—a provision allowing it “[f]rom time to time” to “classify corporations and . . . make rules and regulations,” 15 U.S.C. § 46(g)—authorizes only procedural rules, as the Commission itself recognized for decades. This is confirmed by, among other statutory features, Congress’s decision to adopt special procedures for the substantive rulemaking authority it did grant the Commission, for rules on “unfair or deceptive acts or practices.”</em></p>
  180. </blockquote>
  181. <p>I wish this weren’t the case, because I do think non-competes should be banned, but this argument may be correct. Congress should make this decision, not the FTC.</p>
  182. <p>However, the rest of the complaint is pretty far out there. It’s making a “major questions doctrine” argument here, which has become a recent favorite among the folks looking to tear down the administrative state. It’s not worth going deep on this, other than to say that this doctrine suggests that if an agency is claiming authority over “major questions,” it has to show that it has clear (and clearly articulated) authority to do so from Congress.</p>
  183. <p>Is stopping the local Subway from banning sandwich makers from working at the McDonald’s down the street a “major question”? Well, the lawsuit insists that it is.</p>
  184. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  185. <p><em>Moreover, even if Congress did grant the Commission authority to promulgate some substantive unfair-competition rules, it did not invest the Commission with authority to decide </em><strong><em>the major question</em></strong><em> of whether non-compete agreements are categorically unfair and anticompetitive, a matter affecting tens of millions of workers, millions of employers, and billions of dollars in economic productivity.</em></p>
  186. </blockquote>
  187. <p>And then the complaint takes its big swing: the whole FTC is unconstitutionally structured.</p>
  188. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  189. <p><em>Compounding the constitutional problems, the Commission itself is unconstitutionally structured because it is insulated from presidential oversight. The Constitution vests the Executive Power in the President, not the Commission or its Commissioners. Yet the FTC Act insulates the Commissioners from presidential control by restricting the President’s ability to remove them, shielding their actions from appropriate political accountability.</em></p>
  190. </blockquote>
  191. <p>This is taking a direct shot at multiple parts of the administrative state, where Congress (<em>for very good reasons!!!)</em> set up some agencies to be <a target="_blank" rel="noreferrer noopener" href="https://en.wikipedia.org/wiki/Independent_agencies_of_the_United_States_government"><em>independent agencies</em></a>. They were set up to be independent to <em>distance</em> them from political pressure (and culture war nonsense). While the President can nominate commissioners or directors, they have limited power over how those independent agencies operate.</p>
  192. <p>This lawsuit is basically attempting to say that <em>all</em> independent agencies are unconstitutional. This is one hell of a claim, and would do some pretty serious damage to the ability of the US government to function. Things that weren’t that political before would become political, and it would be a pretty big mess.</p>
  193. <p>But that’s what Ryan LLC (or, really, the lawyers planning this all out) are gunning for.</p>
  194. <p>The <a target="_blank" rel="noreferrer noopener" href="https://dallasinnovates.com/dallas-based-ryan-sues-ftc-in-first-challenge-to-new-non%E2%80%91compete-rule/">announcement that Ryan LLC</a> put out is also… just ridiculous.</p>
  195. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  196. <p><em>“For more than three decades, Ryan has served as a champion for empowering business leaders to reinvest the tax savings our firm has recovered to transform their businesses,” the firm’s Chairman and CEO, G. Brint Ryan, said in a statement.. “Just as Ryan ensures companies pay only the tax they owe, we stand firm in our commitment to serve the rightful interest of every company to retain its proprietary formulas for success taught in good faith to its own employees.</em></p>
  197. </blockquote>
  198. <p>Um. That makes no sense. The FTC ruling does not outlaw NDAs or trade secret laws. Those are what protect “proprietary formulas.” So, the concern that Mr. Ryan is talking about here is wholly unrelated to the rule.</p>
  199. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  200. <p><em>Last spring, Ryan “sought to dissuade” the FTC from imposing the new rule by submitting a 54-page public comment against it. In the comment, Ryan called non-compete agreements “an important tool for firms to protect their IP and foster innovation,” saying that without them, firms could hire away a competitor’s employees just to gain insights into their competitor’s intellectual property. Ryan added that the rule would inhibit firms from investing in that IP in the first place, “resulting in a less innovative economy.”</em></p>
  201. </blockquote>
  202. <p>Again, almost everything said here is bullshit. They can still use NDAs (and IP laws) to protect their “IP.” That’s got nothing to do with non-competes.</p>
  203. <p>As for the claim that it will result in “a less innovative economy,” I’ll just point to the fact that California remains the most innovative economy in the US and hasn’t allowed non-competes. Every single study on non-competes has shown that they hinder innovation. So Ryan LLC and its CEO are full of shit, but that shouldn’t be much of a surprise.</p>
  204. <p>Anyway, this whole thing is a stupid mess. Non-competes should be banned because they’re awful and bad for innovation and employee freedom. But it should be Congress banning them, not the FTC. But, now that the FTC has moved forward with this rule, it’s facing an obviously planned out lawsuit, filed in the Northern District of Texas with friendly judges, and the 5th Circuit appeals court ready to bless any nonsense you can think of.</p>
  205. <p>And, of course, it’s happening at a time when the Supreme Court majority has made it pretty clear that dismantling the entire administrative state is something it looks forward to doing. This means there’s a pretty clear path in the courts for the FTC to lose here, and lose big time. One hopes that if the courts are leaning in this direction, they would simply strike down this rule, rather than effectively striking down the FTC itself. But these days, who the fuck knows how these cases will go.</p>
  206. <p>And even just on the issue of non-competes, my fear is that this effort sets back the entire momentum behind banning them. Assuming the courts strip the FTC rule, many will see it as open season on increasing non-competes, and the FTC would likely be stripped of any power to challenge the most egregious, anti-competitive ones.</p>
  207. <p>Non-competes should be banned. But the end result of this rule could be that they end up being used more widely. And that would really suck.</p>
  208. ]]></content:encoded>
  210. <wfw:commentRss>https://www.techdirt.com/2024/04/24/ftc-bans-non-competes-sparks-instant-lawsuit-the-war-for-worker-freedom/comments/feed/</wfw:commentRss>
  211. <slash:comments>15</slash:comments>
  214. <post-id xmlns="com-wordpress:feed-additions:1">436864</post-id> </item>
  215. <item>
  216. <title>Grindr Hit By UK Lawsuit For Reckless Sale Of Sensitive User Data</title>
  217. <link>https://www.techdirt.com/2024/04/24/grindr-hit-by-uk-lawsuit-for-reckless-sale-of-sensitive-user-data/</link>
  218. <comments>https://www.techdirt.com/2024/04/24/grindr-hit-by-uk-lawsuit-for-reckless-sale-of-sensitive-user-data/#comments</comments>
  220. <dc:creator><![CDATA[Karl Bode]]></dc:creator>
  221. <pubDate>Wed, 24 Apr 2024 12:31:55 +0000</pubDate>
  222. <category><![CDATA[1]]></category>
  223. <category><![CDATA[grindr]]></category>
  224. <category><![CDATA[behavioral data]]></category>
  225. <category><![CDATA[data brokers]]></category>
  226. <category><![CDATA[dating apps]]></category>
  227. <category><![CDATA[law]]></category>
  228. <category><![CDATA[lawsuit]]></category>
  229. <category><![CDATA[location data]]></category>
  230. <category><![CDATA[privacy]]></category>
  231. <category><![CDATA[uk]]></category>
  232. <guid isPermaLink="false">https://www.techdirt.com/?p=436806&#038;preview=true&#038;preview_id=436806</guid>
  233.  
  234. <description><![CDATA[We&#8217;ve noted repeatedly how the mass hyperventilation about TikTok is a giant distraction from the country&#8217;s broader failures on consumer privacy; namely our corrupt inability to pass even a baseline privacy law for the internet era, and our absolute refusal to regulate sleazy data brokers. As a result there&#8217;s not a week that goes by [&#8230;]]]></description>
  235. <content:encoded><![CDATA[<p>We&#8217;ve noted repeatedly how the mass hyperventilation about TikTok is <a href="https://www.techdirt.com/2024/03/15/a-tiktok-ban-is-a-pointless-political-turd-for-democrats/">a giant distraction</a> from the country&#8217;s broader failures on consumer privacy; namely our corrupt inability to pass even a baseline privacy law for the internet era, and our absolute refusal to regulate sleazy data brokers. </p>
  236. <p>As a result there&#8217;s not a week that goes by where there isn&#8217;t some story about your personal behavior and location data being sold to data brokers, who then sell access to any nitwit with a nickel &#8212; or fail to secure it.</p>
  237. <p>Like when Ron Wyden&#8217;s office recently revealed how a right wing activist group was able to purchase women&#8217;s abortion clinic location visit data, then use that data to <a href="https://www.techdirt.com/2024/02/15/wyden-data-broker-used-abortion-clinic-visitor-location-data-to-help-send-targeted-misinformation-to-vulnerable-women/" data-type="link" data-id="https://www.techdirt.com/2024/02/15/wyden-data-broker-used-abortion-clinic-visitor-location-data-to-help-send-targeted-misinformation-to-vulnerable-women/">send the vulnerable women targeted misinformation</a>.</p>
  238. <p>Or last year, when it was revealed that a group of conservative Colorado Catholics spent millions of dollars to purchase Grindr user location and browsing data to <a href="https://www.techdirt.com/2023/03/14/colorado-catholic-group-spent-millions-on-sensitive-grindr-data-to-shame-priests/">single out and shame priests that had used gay dating and hookup apps</a>. </p>
  239. <p>Now Grindr&#8217;s in the news for all the wrong reasons once again. The California-based company is <a href="https://www.nbcnews.com/nbc-out/out-news/grindr-facing-uk-lawsuit-alleged-data-protection-breaches-rcna148787">now facing a new UK lawsuit</a> that alleges the company sold private user information, <strong>including HIV status</strong>, with a range of third parties without user consent:</p>
  240. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  241. <p><em>&#8220;According to the claim, the company shared sensitive data with third parties for commercial purposes, in breach of the UK&#8217;s data privacy laws It says it included information about the ethnicity and sexual orientation of users.&#8221;</em></p>
  242. </blockquote>
  243. <p>The claims (<a href="https://www.austenhays.com/insight/news/grindr-faces-uk-class-action-for-major-data-breach-involving-users-sensitive-medical-records/">more details here</a>) stem from data transactions that occurred a while ago: namely between 2018 and 2020. Grindr, of course, claims they&#8217;ve dramatically improved their privacy practices since then, though <a href="https://www.washingtonpost.com/dc-md-va/2023/03/09/catholics-gay-priests-grindr-data-bishops/?pml=1">this Washington Post story</a> about the use of purchased Grindr data to expose gay priests suggests the behavior extended at least through 2021. </p>
  244. <p>Grindr&#8217;s was also <a href="https://www.bloomberglaw.com/public/desktop/document/ManuallyCollectedComplaint/188?doc_id=X4FD3TJNKQH897QGRKS05OICKS9">sued</a> last year (with the help of a former employee) for promising to delete the data of cancelled accounts and then&#8230; just <a href="https://www.theregister.com/2023/10/05/epic_ftc_complaint_grindr/">not doing that</a>.</p>
  245. <p>Grindr may have changed their behaviors, but they may not have. We can&#8217;t actually know because, again, we don&#8217;t have a meaningful privacy law with meaningful penalties for companies and executives that play fast and loose with consumer data. </p>
  246. <p>And we&#8217;ve done this because policy leaders across the partisan spectrum have prioritized making money over market health and public safety (though a lot of calories go into distracting folks from this fact). </p>
  247. <p>Some variation of what Grindr does is happening across many apps or services or networks you use. Your sensitive location, demographic, and behavioral data is too frequently sold to a vast array of dodgy international data brokers, who then in turn sell access to pretty much anybody (including domestic <strong>and</strong> foreign intelligence agencies). All under the pretense this is safe because the data was &#8220;anonymized&#8221; (a <a href="https://www.techdirt.com/2021/11/22/anonymized-data-is-gibberish-term-rampant-location-data-sales-is-still-problem/">meaningless term</a>).</p>
  248. <p>But remember kids: TikTok is the only real modern privacy threat worth worrying about. </p>
  249. ]]></content:encoded>
  251. <wfw:commentRss>https://www.techdirt.com/2024/04/24/grindr-hit-by-uk-lawsuit-for-reckless-sale-of-sensitive-user-data/comments/feed/</wfw:commentRss>
  252. <slash:comments>1</slash:comments>
  255. <post-id xmlns="com-wordpress:feed-additions:1">436806</post-id> </item>
  256. <item>
  257. <title>David Chang Issues C&#038;Ds Over &#8216;Chile Crunch&#8217; Products, Then Apologizes And Promises To Stop</title>
  258. <link>https://www.techdirt.com/2024/04/23/david-chang-issues-cds-over-chile-crunch-products-then-apologizes-and-promises-to-stop/</link>
  259. <comments>https://www.techdirt.com/2024/04/23/david-chang-issues-cds-over-chile-crunch-products-then-apologizes-and-promises-to-stop/#comments</comments>
  261. <dc:creator><![CDATA[Dark Helmet]]></dc:creator>
  262. <pubDate>Wed, 24 Apr 2024 03:00:02 +0000</pubDate>
  263. <category><![CDATA[1]]></category>
  264. <category><![CDATA[chile colonial]]></category>
  265. <category><![CDATA[homiah]]></category>
  266. <category><![CDATA[momofuku]]></category>
  267. <category><![CDATA[chile crunch]]></category>
  268. <category><![CDATA[chili crunch]]></category>
  269. <category><![CDATA[david chang]]></category>
  270. <category><![CDATA[trademark]]></category>
  271. <category><![CDATA[trademark bullying]]></category>
  272. <guid isPermaLink="false">https://www.techdirt.com/?p=436550&#038;preview=true&#038;preview_id=436550</guid>
  273.  
  274. <description><![CDATA[While it doesn&#8217;t happen nearly as often as I&#8217;d like, it is quite satisfying when a trademark bully is forced to walk back their bullying ways as a result of a public backlash. If you don&#8217;t do a lot of your own cooking, particularly cooking Asian foods, you may not be familiar with chili crisp. [&#8230;]]]></description>
  275. <content:encoded><![CDATA[<p>While it doesn&#8217;t happen nearly as often as I&#8217;d like, it is quite satisfying when a trademark bully is forced to walk back their bullying ways as a result of a public backlash. If you don&#8217;t do a lot of your own cooking, particularly cooking Asian foods, you may not be familiar with chili crisp. Somewhat similar to garlic chili paste, chili crisp is a crunchier version of the condiment made with dried and fried chilis and garlic. Oh, and it&#8217;s absolutely awesome and goes on a ton of things. It regularly makes its way onto my eggs for breakfast, for instance.</p>
  276. <p>It&#8217;s also been around for a long, long time and goes by a variety of name variations. One of those is &#8220;chili crunch&#8221;, or &#8220;chile crunch&#8221;. Now, a company called Chile Colonial, LLC had a trademark for &#8220;chile crunch&#8221; registered with the USPTO somehow. I would argue that the term is both descriptive in nature and also in such widespread common use so as to be invalid as a trademark to begin with, but the USPTO did what it does far too often and granted it anyway. Then famed chef David Chang&#8217;s company, Momofuku, acquired the trademark from the company as part of a lawsuit settlement in 2023 and then applied for a mark on the variant &#8220;chili crunch.&#8221;</p>
  277. <p>And then the threat letters <a href="https://www.theguardian.com/food/2024/apr/04/chili-crunch-trademark-momofuku-david-chang">from Momofuku started going out</a> to small makers of the condiment using those terms, almost all of which were headed up by Asian-Americans.</p>
  278. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  279. <p><em>Michelle Tew, founder of the Malaysian food brand&nbsp;<a href="https://www.homiah.com/">Homiah</a>, based in New York City, is one of the letter recipients. It states that Momofuku is the “ … owner of all trademark rights … ” for “chile crunch” and “chili crunch” (two different spellings) and that her product, Homiah Sambal Chili Crunch, is a trademark infringement.</em></p>
  280. <p><em>Tew said her chili crunch is based on her Malaysian family’s recipe, where she grew up. Momofuku is concerned that consumers might confuse a jar of Homiah Sambal Chili Crunch, which has a colorful floral motif paper label, with a jar of Momofuku Chili Crunch, which is minimalist with a hand-drawn font and no paper label. Homiah has 90 days to cease the use of the “chili crunch trademark”.</em></p>
  281. <p><em>As word spread of Momofuku’s cease-and-desist letters among food entrepreneurs making the chili condiment, reactions ranged from fear and annoyance, to disappointment and astonishment at the gall.</em></p>
  282. </blockquote>
  283. <p>Then other small shops began chiming in about their own threat letters they&#8217;d received, almost universally expressing disappointment that a member of the Asian-American community was attempting to lock up this specific cultural term for its own and threaten others over it. The whole thing got a ton of press coverage, and the public and community in general all seemed to be aligned against Chang and Momofuku. Press coverage featured trademark experts that properly labeled this whole thing as a classic example of trademark bullying.</p>
  284. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  285. <p><em>“The phrase that I would use to refer to Momofuku in this case, is a trademark bully,”<strong>&nbsp;</strong>says Stephen Coates, the lawyer representing Homiah. “This is a clear case of them picking on small businesses with a letter campaign hoping they’ll cave because of the financial pressure.” If small businesses capitulate and omit “chili crunch” from their labels, Momofuku’s product will appear more distinct as it applies for the registered “chili crunch” trademark.</em></p>
  286. </blockquote>
  287. <p>Well, it took a couple of weeks, but it appears all of that public backlash convinced Chang to <a href="https://people.com/david-chang-says-he-won-t-enforce-chili-crisp-trademark-after-backlash-8634003">stand down and apologize for this whole fiasco</a>. His apology, for what it&#8217;s worth, is a fairly good one.</p>
  288. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  289. <p id="mntl-sc-block_12-0"><em>“First and foremost, I want to apologize to everyone in the AAPI community who’s been hurt or feels like I’ve marginalized them or put a ceiling on them by our actions,” began Chang.&nbsp;</em></p>
  290. <p id="mntl-sc-block_14-0"><em>He continued: “I spent the greater part of my adult life trying to bring light to Asian food, Asian American food, Asian identity, what it means to be Asian American. I understand why people are upset and I’m truly sorry.”</em></p>
  291. </blockquote>
  292. <p>But the most important thing Chang stated was a promise to simply not enforce the trademark moving forward. And if he follows through on that, there is simply no reason to have the trademark at all. Non-enforcement would lead to it becoming generic. Given that it&#8217;s already descriptive and I don&#8217;t believe for a second it would survive any actual trademark infringement trial, this whole thing renders the trademark useless.</p>
  293. <p>So maybe the real apology would be Chang invalidating and giving up his own trademark.</p>
  294. ]]></content:encoded>
  296. <wfw:commentRss>https://www.techdirt.com/2024/04/23/david-chang-issues-cds-over-chile-crunch-products-then-apologizes-and-promises-to-stop/comments/feed/</wfw:commentRss>
  297. <slash:comments>1</slash:comments>
  300. <post-id xmlns="com-wordpress:feed-additions:1">436550</post-id> </item>
  301. <item>
  302. <title>Because It&#8217;s Done Such A Great Job Policing Illegal Drugs, The DEA Decides It&#8217;s Time To Start Engaging In Legal Drug Hysteria</title>
  303. <link>https://www.techdirt.com/2024/04/23/because-its-done-such-a-great-job-policing-illegal-drugs-the-dea-decides-its-time-to-start-engaging-in-legal-drug-hysteria/</link>
  304. <comments>https://www.techdirt.com/2024/04/23/because-its-done-such-a-great-job-policing-illegal-drugs-the-dea-decides-its-time-to-start-engaging-in-legal-drug-hysteria/#comments</comments>
  306. <dc:creator><![CDATA[Tim Cushing]]></dc:creator>
  307. <pubDate>Tue, 23 Apr 2024 22:34:07 +0000</pubDate>
  308. <category><![CDATA[1]]></category>
  309. <category><![CDATA[adderall]]></category>
  310. <category><![CDATA[dea]]></category>
  311. <category><![CDATA[drugs]]></category>
  312. <category><![CDATA[matthew strait]]></category>
  313. <category><![CDATA[moral panic]]></category>
  314. <guid isPermaLink="false">https://www.techdirt.com/?p=436701&#038;preview=true&#038;preview_id=436701</guid>
  315.  
  316. <description><![CDATA[While there&#8217;s no doubt illegal fentanyl use is one of the leading causes of death in this nation, the DEA&#8217;s persistent hysteria hasn&#8217;t done anything to make anyone safer. Faced with the fact it can&#8217;t make a dent in the fentanyl trade, the DEA has opted to drum up panic, pretending &#8212; despite all evidence [&#8230;]]]></description>
  317. <content:encoded><![CDATA[<p>While there&#8217;s no doubt illegal fentanyl use is one of the leading causes of death in this nation, the DEA&#8217;s persistent hysteria hasn&#8217;t done anything to make anyone safer. Faced with the fact it can&#8217;t make a dent in the fentanyl trade, the DEA has opted to <a href="https://www.techdirt.com/2022/11/07/deas-rainbow-fentanyl-moral-panic-is-making-broadcasters-politicians-stupider-than-they-already-are/" data-type="link" data-id="https://www.techdirt.com/2022/11/07/deas-rainbow-fentanyl-moral-panic-is-making-broadcasters-politicians-stupider-than-they-already-are/">drum up panic</a>, pretending &#8212; despite all evidence to the contrary &#8212; that drug cartels are using social media services and multi-colored pills to <a href="https://www.techdirt.com/2022/09/07/dea-continues-to-be-the-qanon-of-drug-enforcement-pretends-colorful-fentanyl-is-dealers-trying-to-kill-children/" data-type="link" data-id="https://www.techdirt.com/2022/09/07/dea-continues-to-be-the-qanon-of-drug-enforcement-pretends-colorful-fentanyl-is-dealers-trying-to-kill-children/">literally kill the same children</a> the DEA claims cartels are trying to turn into lifelong addicts.</p>
  318. <p>Even the most obtuse person can suss out the internal contradiction in these claims. Either cartels want to kill children or they want to create a lifelong addiction. They can&#8217;t have it both ways. Kill off kids and you kill off a lifetime of profit. It&#8217;s that simple.</p>
  319. <p>It&#8217;s so simple you&#8217;d think even the DEA could understand it. But it can&#8217;t. Regular cops, however, aren&#8217;t quite as stupid, at least <a href="https://www.techdirt.com/2022/11/01/someone-decides-to-say-something-less-stupid-about-rainbow-fentanyl-and-its-a-cop/" data-type="link" data-id="https://www.techdirt.com/2022/11/01/someone-decides-to-say-something-less-stupid-about-rainbow-fentanyl-and-its-a-cop/">when it comes to colorful pills</a>. The point here is branding, which allows purchasers to easily recognize what they&#8217;re buying, as well as its potency. (Regular cops, however, are also just as stupid, often pretending being <a href="https://www.techdirt.com/2022/01/26/cops-new-favorite-junk-science-is-pretending-being-anywhere-near-fentanyl-will-literally-cause-them-to-die/" data-type="link" data-id="https://www.techdirt.com/2022/01/26/cops-new-favorite-junk-science-is-pretending-being-anywhere-near-fentanyl-will-literally-cause-them-to-die/">within a few feet</a> of possible fentanyl is enough to hospitalize them, if not outright kill them.)</p>
  320. <p>It&#8217;s dumb all over and it&#8217;s getting dumber. Having failed to do anything but make the general public (and their elected representatives!) more stupid, the DEA is now moving on to stoking the fear fire over (checks article) <a href="https://www.bloomberg.com/news/articles/2024-04-19/adderall-abuse-risks-becoming-another-opioid-crisis-dea-says" data-type="link" data-id="https://www.bloomberg.com/news/articles/2024-04-19/adderall-abuse-risks-becoming-another-opioid-crisis-dea-says">completely legal drugs designed to help sufferers of certain mental health condition</a>s. (h/t <a href="https://boingboing.net/2024/04/19/dea-fuels-moral-panic-over-adhd-meds-to-justify-its-failed-drug-war.html" data-type="link" data-id="https://boingboing.net/2024/04/19/dea-fuels-moral-panic-over-adhd-meds-to-justify-its-failed-drug-war.html">Boing Boing</a>)</p>
  321. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  322. <p><em>The fast rise of prescriptions for Adderall and other stimulants, along with rampant online treatment and advertising, suggest the start of another drug crisis like the opioid epidemic, a senior Drug Enforcement Administration official said Thursday.</em></p>
  323. <p><em>The warning is the most urgent public message yet on these types of drugs by the agency.</em></p>
  324. <p><em>“I’m not trying to be a doomsday-er here,” said Matthew Strait, deputy assistant administrator in the diversion control division said in an online&nbsp;<a href="https://archive.ph/o/UAr7K/https://dea-meet.webex.com/webappng/sites/dea-meet/meeting/register/fd54a2df3f0542349b97761388f0db2e?ticket=4832534b0000000534365f4027fcd061d45e6729c2ebb875733b4756851046b2d9ca4bbdba0de76b&amp;timestamp=1713534961553&amp;RGID=r46de28df9446237031488e014f6cf655" target="_blank" rel="noreferrer noopener">seminar</a>. But he compared the current situation with stimulants to the beginning of the opioid crisis and said “it makes me feel like we’re at the precipice of our next drug crisis in the United States.”</em></p>
  325. </blockquote>
  326. <p>Let&#8217;s tackle that last paragraph first. Come on, Mr. Strait. You are <em>absolutely</em> trying to be a &#8220;doomsday-er.&#8221; That is how the DEA has handled anything related to drug use since its inception &#8212; an origin <a href="https://boingboing.net/2024/04/19/dea-fuels-moral-panic-over-adhd-meds-to-justify-its-failed-drug-war.html#:~:text=%22The%20Nixon%20campaign,disrupt%20those%20communities." data-type="link" data-id="https://boingboing.net/2024/04/19/dea-fuels-moral-panic-over-adhd-meds-to-justify-its-failed-drug-war.html#:~:text=%22The%20Nixon%20campaign,disrupt%20those%20communities.">that is as steeped in racism</a> as the <a href="https://naacp.org/find-resources/history-explained/origins-modern-day-policing" data-type="link" data-id="https://naacp.org/find-resources/history-explained/origins-modern-day-policing">formation of police departments across the United States</a>. The DEA can only remain relevant by stoking fears and inducing panic because it has utterly failed to in its original directive: to stymie the flow of illegal drugs into this country. Thanks to the DEA, most street drugs have become <a href="https://www.statnews.com/2016/11/16/illegal-drugs-price-potency/" data-type="link" data-id="https://www.statnews.com/2016/11/16/illegal-drugs-price-potency/">cheaper and more potent</a> since the beginning of the so-called &#8220;War on Drugs.&#8221;</p>
  327. <p>So, all that&#8217;s left is for the DEA to start declaring this drug or that drug the next &#8220;doomsday&#8221; substance. And, like it has in the past, the DEA&#8217;s newest source of hysteria is going to result in enforcement activities that will make it much more difficult for people who rely on (legal!) drugs to manage illnesses to obtain them.</p>
  328. <p>And, sure, we&#8217;ve all consumed enough pop culture to equate Adderall with &#8220;cramming for finals.&#8221; There&#8217;s enough off-label use that it&#8217;s become a cliché. But, unlike fentanyl, the infrequent abuse of stimulants by people desiring just a bit more focus for whatever reason is hardly the same thing as Adderall and its analogs being poised on the precipice of becoming the next fentanyl.</p>
  329. <p>It&#8217;s not enough to disrupt the supply chain with the side effect (intended or otherwise) of preventing people who need these drugs from obtaining them. The DEA also has to pretend drug dealers are selling one drug as another drug because fucking up paying customers is somehow the most profitable way to run an illegal drug operation. </p>
  330. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  331. <p><em>Strait urged people looking for stimulants not to buy drugs on the internet.</em></p>
  332. <p><em>“We see fake pills that look like Adderall that are being sold on the open net and the dark net,” he said. But they may not be Adderall at all, but rather fentanyl, or&nbsp;<a href="https://archive.ph/o/UAr7K/https://www.justice.gov/usao-ri/pr/cumberland-man-plead-guilty-largest-meth-laced-pill-seizure" target="_blank" rel="noreferrer noopener">methamphetamine</a>.</em></p>
  333. </blockquote>
  334. <p>My guess is that any &#8220;fake pills&#8221; being sold on the internet don&#8217;t contain any drugs at all, least of all the illegal ones. Why spend money on real drugs just to see your customer base move on to other sources because you&#8217;ve failed to deliver the product they&#8217;re seeking? While I understand no drug dealer is staffing complaint lines to better understand their user base, they&#8217;re also generally smart enough to know that screwing paying customers tends to result in fewer customers, rather than extremely profitable revenue streams that ensure the viability of the operation for months or years to come.</p>
  335. <p>Remember, this is coming from officials in an agency that specializes in investigating and dismantling large drug operations. And this is how they portray that business &#8212; as something run by opportunistic idiots who are somehow both going to cause a drug crisis by providing large amounts of drugs while simultaneously creating a drug crisis by providing a large amount of drugs that aren&#8217;t even the drugs the DEA now claims are being abused regularly. </p>
  336. <p>On top of that, there&#8217;s cognitive dissonance of agitating for more direct control of legal drug manufacturing and delivery by pharmaceutical companies and health care providers while simultaneously claiming the major danger is dark web drug dealers providing bags full of random drugs to people seeking actual Adderall.</p>
  337. <p>But this is the sort of stupidity you get from people whose continued employment relies on them making the people paying their salaries even stupider than they are. <a href="https://www.techdirt.com/2022/10/03/doj-senate-leader-continue-to-stoke-irrational-fear-that-drug-dealers-are-targeting-kids-with-multicolored-fentanyl/" data-type="link" data-id="https://www.techdirt.com/2022/10/03/doj-senate-leader-continue-to-stoke-irrational-fear-that-drug-dealers-are-targeting-kids-with-multicolored-fentanyl/">The more legislators</a> and <a href="https://www.nbcnews.com/news/us-news/young-people-are-targeted-brightly-colored-rainbow-fentanyl-government-rcna49503" data-type="link" data-id="https://www.nbcnews.com/news/us-news/young-people-are-targeted-brightly-colored-rainbow-fentanyl-government-rcna49503">members of the public</a> they can dupe, the bigger the budget they can expect to control during the next fiscal year.</p>
  338. ]]></content:encoded>
  340. <wfw:commentRss>https://www.techdirt.com/2024/04/23/because-its-done-such-a-great-job-policing-illegal-drugs-the-dea-decides-its-time-to-start-engaging-in-legal-drug-hysteria/comments/feed/</wfw:commentRss>
  341. <slash:comments>23</slash:comments>
  344. <post-id xmlns="com-wordpress:feed-additions:1">436701</post-id> </item>
  345. <item>
  346. <title>When You Need To Post A Lengthy Legal Disclaimer With Your Parody Song, You Know Copyright Is Broken</title>
  347. <link>https://www.techdirt.com/2024/04/23/when-you-need-to-post-a-lengthy-legal-disclaimer-with-your-parody-song-you-know-copyright-is-broken/</link>
  348. <comments>https://www.techdirt.com/2024/04/23/when-you-need-to-post-a-lengthy-legal-disclaimer-with-your-parody-song-you-know-copyright-is-broken/#comments</comments>
  350. <dc:creator><![CDATA[Mike Masnick]]></dc:creator>
  351. <pubDate>Tue, 23 Apr 2024 20:38:17 +0000</pubDate>
  352. <category><![CDATA[youtube]]></category>
  353. <category><![CDATA[contentid]]></category>
  354. <category><![CDATA[copyright]]></category>
  355. <category><![CDATA[dmca]]></category>
  356. <category><![CDATA[dustin ballard]]></category>
  357. <category><![CDATA[fair use]]></category>
  358. <category><![CDATA[parody]]></category>
  359. <category><![CDATA[there i ruined it]]></category>
  360. <guid isPermaLink="false">https://www.techdirt.com/?p=436788</guid>
  361.  
  362. <description><![CDATA[In a world where copyright law has run amok, even creating a silly parody song now requires a massive legal disclaimer to avoid getting sued. That&#8217;s the absurd reality we live in, as highlighted by the brilliant musical parody project &#8220;There I Ruined It.&#8221; Musician Dustin Ballard creates hilarious videos, some of which reimagine popular [&#8230;]]]></description>
  363. <content:encoded><![CDATA[<p>In a world where copyright law has run amok, even creating a silly parody song now requires a massive legal disclaimer to avoid getting sued. That&#8217;s the absurd reality we live in, as highlighted by the brilliant musical parody project &#8220;<a target="_blank" rel="noreferrer noopener" href="https://www.there-i-ruined-it.com/">There I Ruined It</a>.&#8221;</p>
  364. <p>Musician Dustin Ballard creates hilarious videos, some of which reimagine popular songs in the style of wildly different artists, like Simon &amp; Garfunkel singing &#8220;<a href="https://www.youtube.com/watch?v=PdsVRegEJTA" target="_blank" rel="noreferrer noopener">Baby Got Back</a>&#8221; or the Beach Boys covering Jay-Z&#8217;s &#8220;<a href="https://www.youtube.com/watch?v=Z5EGZ145K_w" target="_blank" rel="noreferrer noopener">99 Problems</a>.&#8221; He appears to create the music himself, including <a href="https://www.tiktok.com/@thereiruinedit/video/7341212496226995499">singing the vocals</a>, but uses an AI tool to adjust the vocal styles to match the artist he&#8217;s trying to parody. The results are comedic gold. However, Ballard felt the need to plaster his latest video with paragraphs of dense legalese just to avoid frivolous copyright strikes.</p>
  365. <figure class="wp-block-embed aligncenter is-type-video is-provider-youtube wp-block-embed-youtube wp-embed-aspect-16-9 wp-has-aspect-ratio">
  366. <div class="wp-block-embed__wrapper">
  367. <iframe title="The Beach Boys sing &quot;99 Problems&quot; by Jay-Z" width="500" height="281" src="https://www.youtube.com/embed/Z5EGZ145K_w?feature=oembed" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture; web-share" referrerpolicy="strict-origin-when-cross-origin" allowfullscreen></iframe>
  368. </div>
  369. </figure>
  370. <p>When our intellectual property system is so broken that it stifles obvious works of parody and creative expression, something has gone very wrong. Comedy and commentary are core parts of free speech, but overzealous copyright law is allowing corporations to censor first and ask questions later. And that&#8217;s no laughing matter.</p>
  371. <p>If you haven’t yet watched the video above (and I promise you, it is totally worth it to watch), the last 15 seconds involve this long scrolling copyright disclaimer. It is apparently targeted at the likely mythical YouTube employee who might read it in assessing whether or not the song is protected speech under fair use.</p>
  372. <div class="wp-block-image">
  373. <figure class="aligncenter"><img decoding="async" src="https://i0.wp.com/lex-img-p.s3.us-west-2.amazonaws.com/img/6a4a9ab6-ef29-4797-a728-8870aa496a8a-RackMultipart20240422-150-4pfv5c.png?ssl=1" alt="Image" data-recalc-dims="1"/></figure>
  374. </div>
  375. <p>And here’s a transcript:</p>
  376. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  377. <p><em>The preceding was a work of parody which comments on the perceived misogynistic lyrical similarities between artists of two different eras: the Beach Boys and Jay-Z (Shawn Corey Carter). In the United States, parody is protected by the First Amendment under the Fair Use exception, which is governed by the factors enumerated in section 107 of the Copyright Act. This doctrine provides an affirmative defense for unauthorized uses that would otherwise amount to copyright infringement. Parody aside, copyrights generally expire 95 years after publication, so if you are reading this in the 22nd century, please disregard.</em></p>
  378. <p><em>Anyhoo, in the unlikely event that an actual YouTube employee sees this, I&#8217;d be happy to sit down over coffee and talk about parody law. In Campell v. Acuff-Rose Music Inc, for example, the U.S. Supreme Court allowed for 2 Live Crew to borrow from Roy Orbison&#8217;s &#8220;Pretty Woman&#8221; on grounds of parody. I would have loved to be a fly on the wall when the justices reviewed those filthy lyrics! All this to say, please spare me the trouble of attempting to dispute yet another frivolous copyright claim from my old pals at Universal Music Group, who continue to collect the majority of this channel&#8217;s revenue. You&#8217;re ruining parody for everyone.</em></p>
  379. </blockquote>
  380. <p>In 2024, you shouldn’t need to have a law degree to post a humorous parody song.</p>
  381. <p>But, that is the way of the world today. The combination of the DMCA’s “take this down or else” and YouTube’s willingness to cater to big entertainment companies with the way ContentID works allows bogus copyright claims to have a real impact in all sorts of awful ways.</p>
  382. <p>We’ve said it before: copyright remains the one tool that allows for the censorship of content, but it’s supposed to only be applied to situations of <em>actual infringement</em>. But because Congress and the courts have decided that copyright is in some sort of weird First Amendment free zone, it allows for the removal of content <em>before</em> there is any adjudication of whether or not the content is actually infringing.</p>
  383. <p>And that has been a real loss to culture. There’s a reason we have fair use. There’s a reason we allow people to create parodies. It’s because it adds to and improves our cultural heritage. The video above (assuming it’s still available) is an astoundingly wonderful cultural artifact. But it’s one that is greatly at risk due to abusive copyright claims.</p>
  384. <p>Let’s also take this one step further. Tennessee just recently<a target="_blank" rel="noreferrer noopener" href="https://www.tennessean.com/story/entertainment/music/2024/03/21/elvis-act-tennessee-gov-lee-signs-act-musicians-ai/73019388007/"> passed a new law</a>, the ELVIS Act (Ensuring Likeness Voice and Image Security Act). This law expands the already problematic space of <a target="_blank" rel="noreferrer noopener" href="https://www.techdirt.com/tag/publicity-rights/">publicity rights</a> based on a nonsense moral panic about AI and deepfakes. Because there’s an irrational (and mostly silly) fear of people taking the voice and likeness of musicians, this law broadly outlaws that.</p>
  385. <p>While the ELVIS Act has an exemption for works deemed to be “fair use,” as with the rest of the discussion above, copyright law today seems to (incorrectly, in my opinion) take a “guilty until proven innocent” approach to copyright and fair use. That is, everything is set up to assume it’s infringing unless you can convince a court that it’s fair use, and that leads to all sorts of censorship.</p>
  386. <p>So even if I think the video above is obviously fair use, if the Beach Boys decided to try to make use of the ELVIS Act to go after “There I Ruined It,” would it actually even be worth it for them to defend the case? Most likely not.</p>
  387. <p>And thus, another important avenue and marker of culture gets shut down. All in the name of what? Some weird, overly censorial belief in “control” over cultural works that are supposed to be spread far and wide, because that’s how culture becomes culture.</p>
  388. <p>I hope that Ballard is able to continue making these lovely parodies and that they are able to be shared freely and widely. But just the fact that he felt it necessary to add that long disclaimer at the end really highlights just how stupid copyright has become and how much it is limiting and distorting culture.</p>
  389. <p>You shouldn’t need a legal disclaimer just to create culture.</p>
  390. ]]></content:encoded>
  392. <wfw:commentRss>https://www.techdirt.com/2024/04/23/when-you-need-to-post-a-lengthy-legal-disclaimer-with-your-parody-song-you-know-copyright-is-broken/comments/feed/</wfw:commentRss>
  393. <slash:comments>25</slash:comments>
  396. <post-id xmlns="com-wordpress:feed-additions:1">436788</post-id> </item>
  397. <item>
  398. <title>No One Can Own The Law—So Why Is Congress Advancing A Bill To Extend Copyright To It?</title>
  399. <link>https://www.techdirt.com/2024/04/23/no-one-can-own-the-law-so-why-is-congress-advancing-a-bill-to-extend-copyright-to-it/</link>
  400. <comments>https://www.techdirt.com/2024/04/23/no-one-can-own-the-law-so-why-is-congress-advancing-a-bill-to-extend-copyright-to-it/#comments</comments>
  402. <dc:creator><![CDATA[Mike Masnick]]></dc:creator>
  403. <pubDate>Tue, 23 Apr 2024 19:09:17 +0000</pubDate>
  404. <category><![CDATA[astm]]></category>
  405. <category><![CDATA[public.resource.org]]></category>
  406. <category><![CDATA[access to the law]]></category>
  407. <category><![CDATA[copyright]]></category>
  408. <category><![CDATA[copyrighting the law]]></category>
  409. <category><![CDATA[government edicts]]></category>
  410. <category><![CDATA[incorporated by reference]]></category>
  411. <category><![CDATA[pro codes act]]></category>
  412. <category><![CDATA[standards]]></category>
  413. <category><![CDATA[takings]]></category>
  414. <category><![CDATA[zoe lofgren]]></category>
  415. <guid isPermaLink="false">https://www.techdirt.com/?p=436639</guid>
  416.  
  417. <description><![CDATA[Last week, the US House of Representatives Judiciary Committee voted to advance the Protecting and Enhancing Public Access to Codes Act, or the&#160;Pro Codes Act (H.R. 1631), to the full House. The bill would extend copyright protection to codes (such as building codes) that are developed by standards development organizations (SDOs) and incorporated by reference [&#8230;]]]></description>
  418. <content:encoded><![CDATA[<p>Last week, the US House of Representatives Judiciary Committee voted to advance the Protecting and Enhancing Public Access to Codes Act, or the&nbsp;<a href="https://www.congress.gov/bill/118th-congress/house-bill/1631">Pro Codes Act (H.R. 1631)</a>, to the full House. The bill would extend copyright protection to codes (such as building codes) that are developed by standards development organizations (SDOs) and incorporated by reference into local, state, and federal laws, as long as the SDOs make the codes “available to the public free of charge online in a manner that does not substantially disrupt the ability of those organizations to earn revenue.”</p>
  419. <p>This is the latest development in a long-running battle between SDOs and public interest groups that have posted online standards incorporated by reference. SDOs have sued these public interest groups for copyright infringement, and the public interest groups have argued that once the standards are incorporated by reference, they lose their copyright protection. The public interest groups have argued in the alternative that the fair use right permits the online posting of the standards. The courts have ruled in favor of the public interest groups on the fair use theory without addressing the protectability argument. The Pro Codes Act seeks to foreclose the protectability argument without directly implicating the fair use theory.</p>
  420. <p>The SDOs supporting the Pro Codes Act assert that it would increase access to the law by incentivizing the SDOs to provide online “reading rooms” where the public could read the standards incorporated by reference. However, such reading rooms are unnecessary because public interest groups already provide free online access to the standards in more usable formats. As Corynne McSherry, legal director at the Electronic Frontier Foundation (EFF), stated: “This legislation is a solution in search of a problem: at least one public interest organization is already providing much better access to the law, also for free, with no financial impact on the standard organizations.” In 2023, McSherry successfully represented Public.Resource.Org in&nbsp;<em>ASTM v. Public.Resource.Org</em>, where the US Court of Appeals for the DC Circuit held that fair use permitted Public.Resource.Org to post online codes incorporated by reference because it served a nonprofit, educational purpose.</p>
  421. <p>During last week’s&nbsp;<a href="https://archive.org/details/h.r.1631.markup.20240417">markup of the Pro Codes Act</a>, Representative Zoe Lofgren introduced dozens of amendments to improve the bill, one of which would codify the&nbsp;<em>ASTM</em>&nbsp;precedent established by the DC Circuit. Unfortunately, the committee rejected this amendment. (In fact, the committee voted down all of Lofgren’s amendments, except for one that would require the Government Accountability Office to study the effects of the bill.)</p>
  422. <p>Rep. Lofgren also entered into the record an&nbsp;<a href="https://www.arl.org/wp-content/uploads/2024/04/Pro-Codes-Judiciary.pdf">opposition letter</a>&nbsp;in which a coalition of libraries, civil society, disability rights groups, and others argue that providing free access to the law furthers the fundamental purpose of copyright, which is to allow public access to knowledge. Some of the letter’s signers also made this point in an&nbsp;<a href="https://publicknowledge.org/wp-content/uploads/2022/12/ASTM-_v_PRO_amicus.pdf">amicus brief</a>&nbsp;in&nbsp;<em>ASTM v. Public.Resource.Org</em>:</p>
  423. <p>The Copyright Act ultimately aims to achieve the constitutional goal to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art 1, cl. 8, sec. 8.</p>
  424. <p>During last week’s markup, some members of the House Judiciary Committee displayed a fundamental misunderstanding of copyright law. Proponents of Pro Codes claimed that the bill would strike a balance between copyright law and public access to information. But copyright law and access to information are not in tension; facilitating access to information is the constitutional purpose of copyright, as the library and civil society groups wrote in their brief in support of Public.Resource.Org.</p>
  425. <p>Some members of the committee tried to parse standards incorporated by reference from other elements of the law. But as Rep. Lofgren rightly noted, in 2020 the Supreme Court reaffirmed the “government edicts doctrine” that works created by government officials in the course of their official duties are not copyrightable. Accordingly, when a work is incorporated by reference into an official government document it has the force of law and belongs in the public domain. In 2019, the Library Copyright Alliance (LCA) filed an&nbsp;<a href="https://www.supremecourt.gov/DocketPDF/18/18-1150/119208/20191016155247671_18-1150_Urban_Brief%20Amicus%20Curiae-Library%20Associations.pdf">amicus brief</a>&nbsp;in<em>&nbsp;State of Georgia v. Public.Resource.Org</em>&nbsp;asking the Supreme Court to affirm this reasoning, and explaining how libraries rely on the government edicts doctrine to preserve and provide access to the cultural record, including all elements of the law.</p>
  426. <p>Another flawed argument by lawmakers at the Pro Codes markup is that standards incorporated by reference is an unfair “taking” of the SDOs’ copyrights under the Fifth Amendment. As the lawmakers’ argument goes, governments must compensate property owners when they take over private property for public use under eminent domain; similarly, the government should extend copyright to the SDOs in exchange for the use of their standards. But this analogy falls apart because there is no reluctance on the part of the SDOs for the adoption of their standards; in fact, the SDOs actively lobby governments to adopt their standards.</p>
  427. <p>A related argument by supporters of the Pro Codes Act is that the SDOs provide a valuable service, and therefore they deserve a revenue stream in exchange for their contribution to the public good. But copyright law does not grant copyright to reward hard work (<em>Feist Publications v. Rural Telephone Service</em>). Further, the DC Circuit Court found that although Public.Resource.Org has been posting incorporated standards for 15 years, “the plaintiffs have been unable to produce any economic analysis showing that Public Resource’s activity has harmed any relevant market for their standards. To the contrary, ASTM’s sales have increased over that time.” The SDOs can also derive significant revenue from selling training materials and programs. SDOs do not need a copyright incentive; the development of standards advances the economic interests of their members.</p>
  428. <p>Additionally, Rep. Lofgren pointed out that, in 2020, the Supreme Court in&nbsp;<em>Georgia v. Public.Resource.Org</em>&nbsp;found constitutional limits to legislatures’ ability to expand copyright. Chief Justice Roberts stated “no one can own the law” and reaffirmed that if “every citizen is presumed to know the law, … it needs no argument to show … that all should have free access” to its contents. Pro Codes would be unconstitutional under the First, Fifth, and Fourteenth amendments, which guarantee the public’s rights to read, share, and discuss the law.</p>
  429. <p>It is worth noting that several House Judiciary Committee members made nearly identical arguments in favor of the bill, and I assume the standards development organizations circulated talking points in advance of the markup. We know that passing the Pro Codes Act is a major legislative priority for the SDOs.</p>
  430. <p>ARL and our&nbsp;<a href="https://www.arl.org/wp-content/uploads/2024/04/Pro-Codes-Judiciary.pdf">fellow advocates</a>&nbsp;are disappointed that the Pro Codes Act will advance to the House, particularly since the House did not hold a hearing on the bill. We remain grateful to Representative Lofgren, who has defended copyright law against overprotection for decades.</p>
  431. <p><em>Katherine Klosek is the Director of Information Policy and Federal Relations at the Association of Research Libraries. This post originally appeared on <a href="https://www.arl.org/blog/no-one-can-own-the-law-so-why-is-congress-advancing-a-bill-to-extend-copyright-to-it/">the ARL&#8217;s site</a>.</em></p>
  432. ]]></content:encoded>
  434. <wfw:commentRss>https://www.techdirt.com/2024/04/23/no-one-can-own-the-law-so-why-is-congress-advancing-a-bill-to-extend-copyright-to-it/comments/feed/</wfw:commentRss>
  435. <slash:comments>17</slash:comments>
  438. <post-id xmlns="com-wordpress:feed-additions:1">436639</post-id> </item>
  439. <item>
  440. <title>Top Lawyer In Texas Doesn&#8217;t Understand Court Rulings, Celebrates Obvious SCOTUS Loss As A Win</title>
  441. <link>https://www.techdirt.com/2024/04/23/top-prosecutor-in-texas-doesnt-understand-court-rulings-celebrates-obvious-scotus-loss-as-a-win/</link>
  442. <comments>https://www.techdirt.com/2024/04/23/top-prosecutor-in-texas-doesnt-understand-court-rulings-celebrates-obvious-scotus-loss-as-a-win/#comments</comments>
  444. <dc:creator><![CDATA[Tim Cushing]]></dc:creator>
  445. <pubDate>Tue, 23 Apr 2024 17:52:17 +0000</pubDate>
  446. <category><![CDATA[1]]></category>
  447. <category><![CDATA[5th amendment]]></category>
  448. <category><![CDATA[5th circuit]]></category>
  449. <category><![CDATA[ken paxton]]></category>
  450. <category><![CDATA[supreme court]]></category>
  451. <category><![CDATA[takings clause]]></category>
  452. <category><![CDATA[texas]]></category>
  453. <guid isPermaLink="false">https://www.techdirt.com/?p=436645&#038;preview=true&#038;preview_id=436645</guid>
  454.  
  455. <description><![CDATA[Texas Attorney General Ken Paxton is an utter asshat. Not only is he the chosen defender of litigation over unconstitutional laws passed by an equally idiotic legislature, but he&#8217;s also the man behind plenty of Texas government action meant to make things worse for plenty of Texas residents. On top of that, Ken Paxton has [&#8230;]]]></description>
  456. <content:encoded><![CDATA[<p>Texas Attorney General Ken Paxton is <a href="https://www.techdirt.com/2024/02/09/court-reluctantly-dismisses-yelps-lawsuit-against-texas-over-ken-paxtons-threats-regarding-crisis-pregnancy-centers/" data-type="link" data-id="https://www.techdirt.com/2024/02/09/court-reluctantly-dismisses-yelps-lawsuit-against-texas-over-ken-paxtons-threats-regarding-crisis-pregnancy-centers/">an utter asshat</a>. Not only is he the chosen defender of litigation <a href="https://www.techdirt.com/2021/09/24/texas-unconstitutional-social-media-censorship-bill-challenged-court-just-as-texas-joins-legal-fight-floridas-unconstitutional/" data-type="link" data-id="https://www.techdirt.com/2021/09/24/texas-unconstitutional-social-media-censorship-bill-challenged-court-just-as-texas-joins-legal-fight-floridas-unconstitutional/">over unconstitutional laws</a> passed by an equally idiotic legislature, but he&#8217;s also the man behind plenty of <a href="https://www.techdirt.com/2024/04/15/judge-slams-ken-paxtons-attack-on-media-matters-free-speech-rights/" data-type="link" data-id="https://www.techdirt.com/2024/04/15/judge-slams-ken-paxtons-attack-on-media-matters-free-speech-rights/">Texas government action</a> meant to make things worse for plenty of Texas residents.</p>
  457. <p>On top of that, Ken Paxton <a href="https://www.texastribune.org/2023/10/30/ken-paxton-securities-fraud-charges-trial/" data-type="link" data-id="https://www.texastribune.org/2023/10/30/ken-paxton-securities-fraud-charges-trial/">has been indicted</a> for committing securities fraud and recently agreed to <a href="https://www.pbs.org/newshour/politics/texas-attorney-general-ken-paxton-makes-deal-to-end-securities-charges-weeks-before-trial" data-type="link" data-id="https://www.pbs.org/newshour/politics/texas-attorney-general-ken-paxton-makes-deal-to-end-securities-charges-weeks-before-trial">pay $300,000 in restitution to avoid a criminal trial</a>. The man who is the <a href="https://www.techdirt.com/2024/02/28/ken-paxton-sues-pornhubs-parent-company-aylo-for-alleged-violations-of-texas-anti-porn-law/" data-type="link" data-id="https://www.techdirt.com/2024/02/28/ken-paxton-sues-pornhubs-parent-company-aylo-for-alleged-violations-of-texas-anti-porn-law/">voice of the law</a> in Texas not only doesn&#8217;t understand the Constitution but he seemingly can&#8217;t wrap his mind around the normal flow of litigation through the federal judicial system. On top of that, he can&#8217;t seem to stop violating laws himself, even though his position is at the top of the state&#8217;s &#8220;law and order&#8221; organizational chart. </p>
  458. <p>But once you&#8217;ve decided &#8220;performative&#8221; is preferable to &#8220;competent,&#8221; all sorts of stupid things start happening. While AG Paxton continues to <a href="https://www.techdirt.com/2021/12/02/texas-court-gets-it-right-dumps-texass-social-media-moderation-law-as-clearly-unconstitutional/" data-type="link" data-id="https://www.techdirt.com/2021/12/02/texas-court-gets-it-right-dumps-texass-social-media-moderation-law-as-clearly-unconstitutional/">defend bad laws</a> written by worse legislators, he&#8217;s also charged with fielding lawsuits filed by unhappy Texas residents who don&#8217;t feel their state government has any right to destroy their land without providing some compensation in return. </p>
  459. <p>A civil rights lawsuit filed by two Texas residents whose land was destroyed thanks to government incompetence have sued the state. AG Paxton tried to have it both ways with these suits, <a href="https://thetexan.news/judicial/scotus-rules-texas-farmer-can-sue-state-under-fifth-amendment/article_fce1a2a0-fce6-11ee-8979-032f5d4d946f.html" data-type="link" data-id="https://thetexan.news/judicial/scotus-rules-texas-farmer-can-sue-state-under-fifth-amendment/article_fce1a2a0-fce6-11ee-8979-032f5d4d946f.html">as Matt Stringer explains for The Texan</a>: </p>
  460. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  461. <p><em>The&nbsp;<a href="https://thetexan.news/judicial/u-s-supreme-court-to-hear-farmer-s-fifth-amendment-takings-case-in-devillier-v/article_18ce49c4-63bc-11ee-ad5d-23d8aa806330.html" target="_blank" rel="noreferrer noopener">case began</a>&nbsp;when the Texas Department of Transportation (TxDOT) built a dam on Interstate 10 near DeVillier’s fifth-generation family farm at Winnie, Texas, causing it to flood. The water destroyed his home, orchard, and livestock, prompting him to seek just compensation from the state.</em></p>
  462. <p><em>DeVillier filed the lawsuit in state district court seeking compensation under both the Texas Constitution and the “Takings Clause” contained in the U.S. Constitution’s Fifth Amendment.</em></p>
  463. <p><em>Pointing to DeVillier’s neighbors who were also suing, the Office of the Texas Attorney General (OAG) asked the case to be removed to federal district court in the U.S. Southern District of Texas in order to better accommodate the plaintiffs. Once in federal court, Texas moved to dismiss the case, claiming the plaintiffs couldn’t sue the state in federal court directly under the Fifth Amendment.</em></p>
  464. <p><em>Under the 11th Amendment, citizens may not sue state governments in federal court unless the state says they may, or a “cause of action” law is passed waiving the state’s sovereign immunity.</em></p>
  465. </blockquote>
  466. <p>The stated reason for moving the lawsuits from state court to federal court was to make things &#8220;simpler&#8221; for the plaintiffs suing the state. The <em>real</em> reason was to convert the state cases to federal lawsuits for the sole purpose of dodging the claims by arguing the litigants (whose cases were moved without their approval) could not pursue these lawsuits in federal court. </p>
  467. <p>Heads, Paxton wins. Tails, the plaintiffs lose. And it actually went that way for a little bit. The district court said the state waived its sovereign immunity against the suits by moving them to a federal court. This effort made the Fifth Amendment &#8220;self-executing,&#8221; which meant the plaintiffs could move forward with their lawsuits in the federal court.</p>
  468. <p>Paxton appealed this decision. The Fifth Circuit Appeals Court (which is<a href="https://www.techdirt.com/2023/09/20/last-week-5th-circuit-said-govt-cant-pressure-websites-this-week-it-says-govt-mandated-health-messages-are-perfectly-fine/" data-type="link" data-id="https://www.techdirt.com/2023/09/20/last-week-5th-circuit-said-govt-cant-pressure-websites-this-week-it-says-govt-mandated-health-messages-are-perfectly-fine/"> routinely awful</a> when it comes to <a href="https://www.techdirt.com/2022/05/12/the-5th-circuit-reinstates-texas-obviously-unconstitutional-social-media-law-effective-immediately/" data-type="link" data-id="https://www.techdirt.com/2022/05/12/the-5th-circuit-reinstates-texas-obviously-unconstitutional-social-media-law-effective-immediately/">protecting the rights</a> of circuit residents) reversed that decision, holding that the Fifth Amendment was not self-executing and ordering the lawsuits be returned to the state court from whence they had originated. </p>
  469. <p>That obviously wouldn&#8217;t work for Paxton. A return to state court meant the state would continue to have to face these claims without the shield of sovereign immunity, which only would apply if the lawsuits were pursued in <em>federal</em> court.</p>
  470. <p>So, Paxton appealed again, asking the Supreme Court to take a look at the lawsuits and make a call on the issue since the district court and Appeals Court had come to different conclusions&#8230; neither of which worked out in the state&#8217;s favor. </p>
  471. <p>The Supreme Court took a look at the Fifth Circuit decision and vacated it. By doing so, it created a path for the plaintiffs to continue suing the state over constitutional violations, undoing Paxton&#8217;s attempt to scuttle the case by invoking sovereign immunity.</p>
  472. <p>Somehow, AG Paxton decided this reversal &#8212; which allowed the lawsuits to continue in federal court &#8212; was somehow a <em>win</em> for him and his office. <a href="https://twitter.com/KenPaxtonTX/status/1780338378275250490" data-type="link" data-id="https://twitter.com/KenPaxtonTX/status/1780338378275250490">He went right to XTwitter to gloat</a>, because that&#8217;s the <a href="https://www.techdirt.com/2022/06/08/texas-long-indicted-attorney-general-launches-investigation-into-whether-or-not-hes-the-biggest-elon-musk-sycophant-yet/" data-type="link" data-id="https://www.techdirt.com/2022/06/08/texas-long-indicted-attorney-general-launches-investigation-into-whether-or-not-hes-the-biggest-elon-musk-sycophant-yet/">platform of choice for idiots</a> like Paxton who like to shout things into blue-checked echo chambers whenever possible. </p>
  473. <p><a href="https://twitter.com/KenPaxtonTX/status/1780338378275250490" data-type="link" data-id="https://twitter.com/KenPaxtonTX/status/1780338378275250490">Paxton bleated</a> (I believe that&#8217;s the technical term for X posts?) this in response to the unanimous 9-0 shutout at the Supreme Court: </p>
  474. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  475. <p><em>WIN: Today we secured a unanimous 9-0 win at the U.S. Supreme Court in a case protecting the ability of Texas to handle compensation disputes under State law for any allegedly taken property.</em>&nbsp; </p>
  476. <p><em>For as long as Texas has been Texas, it has recognized that property rights are crucial to a free society. Under the U.S. Constitution, such claims should be pursued under state law unless Congress has said otherwise. I’m pleased the Supreme Court agreed with us unanimously that citizens should sue under Texas law.</em></p>
  477. </blockquote>
  478. <div class="wp-block-image">
  479. <figure class="aligncenter size-full"><img fetchpriority="high" decoding="async" width="532" height="544" src="https://i0.wp.com/www.techdirt.com/wp-content/uploads/2024/04/Screenshot-2024-04-19-8.04.52-PM.png?resize=532%2C544&#038;ssl=1" alt="" class="wp-image-436648" srcset="https://i0.wp.com/www.techdirt.com/wp-content/uploads/2024/04/Screenshot-2024-04-19-8.04.52-PM.png?w=532&amp;ssl=1 532w, https://i0.wp.com/www.techdirt.com/wp-content/uploads/2024/04/Screenshot-2024-04-19-8.04.52-PM.png?resize=293%2C300&amp;ssl=1 293w" sizes="(max-width: 532px) 100vw, 532px" data-recalc-dims="1" /></figure>
  480. </div>
  481. <p>Paxton is wrong. Patrick Jaicomo &#8212; a litigator for the Institute for Justice who represented the plaintiffs in this case &#8212; <a href="https://twitter.com/pjaicomo/status/1780376402442817974" data-type="link" data-id="https://twitter.com/pjaicomo/status/1780376402442817974">was one of the first to point out Paxton&#8217;s stupidity</a>. Plenty of other people capable of comprehending court rulings pointed out this error as well, forcing Elon Musk&#8217;s Internet Hate Machine to append a clarification to AG Paxton&#8217;s misrepresentation of the SCOTUS decision. This &#8220;Community Note&#8221; was quickly attached to Paxton&#8217;s post.</p>
  482. <blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
  483. <p><em>Texas did not win. Texas asked the Court to affirm the 5th Circuit&#8217;s ruling. The Court instead vacated the 5th Circuit&#8217;s ruling. </em></p>
  484. </blockquote>
  485. <p>Rather than taking the L and receding into the background to wait for some new debacle to overtake the X zeitgeist, Paxton doubled down, issuing a &#8220;correction&#8221; to the Community Note that, again, claimed the loss he had taken was actually a win.</p>
  486. <p>By doing this, Paxton secured an ultra-rare double Community Note, extending his original tweet to include two sets of corrections to his mis-portrayal of the Supreme Court decision:</p>
  487. <div class="wp-block-image">
  488. <figure class="aligncenter size-full"><img decoding="async" width="536" height="745" src="https://i0.wp.com/www.techdirt.com/wp-content/uploads/2024/04/Screenshot-2024-04-19-8.12.53-PM.png?resize=536%2C745&#038;ssl=1" alt="" class="wp-image-436649" srcset="https://i0.wp.com/www.techdirt.com/wp-content/uploads/2024/04/Screenshot-2024-04-19-8.12.53-PM.png?w=536&amp;ssl=1 536w, https://i0.wp.com/www.techdirt.com/wp-content/uploads/2024/04/Screenshot-2024-04-19-8.12.53-PM.png?resize=216%2C300&amp;ssl=1 216w" sizes="(max-width: 536px) 100vw, 536px" data-recalc-dims="1" /></figure>
  489. </div>
  490. <p>This would be embarrassing enough if it was just some person incorrectly informing XTwitter about the outcome of a legal case. But this is the state&#8217;s top lawyer &#8212; the man who is given the responsibility of representing the state in court, as well as overseeing a host of prosecutors handling criminal cases. And all this shows is Paxton is so desperate for good news he will willfully misunderstand a clear-cut (and unanimous!) Supreme Court decision so he can lob a fact-free assessment into his favorite echo chamber like chum tossed to particularly stupid sharks.</p>
  491. <p>He&#8217;s been an embarrassment for years. This very public blowout makes it clear he&#8217;ll be an embarrassment for years to come if Texas voters continue to allow him to hold this office. </p>
  492. ]]></content:encoded>
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