For the first time, a huge group of parents, teens and school districts is taking on the world’s most powerful social media companies in open court, accusing the tech giants of intentionally designing their products to be addictive. The blockbuster legal proceedings may see multiple CEOs, including Meta’s Mark Zuckerberg, face harsh questioning.

A long-awaited series of trials kicks off in Los Angeles superior court on Tuesday, in which hundreds of US families will allege that Meta, Snap, TikTok and YouTube’s platforms harm children. Once young people are hooked, the plaintiffs allege, they fall prey to depression, eating disorders, self-harm and other mental health issues. Approximately 1,600 plaintiffs are included in the proceedings, involving more than 350 families and 250 school districts.

The lawyers involved are explicitly using the tobacco playbook, comparing social media to cigarettes. But there’s an important point here: “social media addiction” isn’t actually a recognized clinical addiction. And a fascinating new study in Nature’s Scientific Reports suggests that our collective insistence on using addiction language might actually be making things worse for users who want to change their behavior.

The researchers conducted two studies. In the first, they surveyed a nationally representative sample of adult Instagram users and found something striking: only about 2% of users showed symptoms that would put them at risk for addiction based on the clinical criteria in the Bergen Social Media Addiction Scale. But when asked directly if they felt addicted, 18% of users agreed at least somewhat. In other words, people are dramatically overestimating whether they’re actually addicted.

This matters a lot, because calling yourself addicted can have serious consequences. The study found that users who perceived themselves as more addicted (but not necessarily more habitual) reported feeling less control over their use and had made more unsuccessful attempts to change their behavior. From the study:

Self-labeling of clinical conditions (e.g., I think I’m depressed) has proved to be associated with maladaptive responses, including lowered self-efficacy and perceived control over the pathology

To test whether the addiction framing actually causes these problems rather than just correlating with them, the researchers ran a second study. They had some participants reflect on their own “addictive” Instagram use after reading language from the U.S. Surgeon General’s somewhat questionable report warning that “frequent, excessive social media use is addictive.” The control group answered the same questions but without the addiction framing first.

The results were clear and somewhat striking: simply priming people to think about their social media use as an addiction reduced their perceived control, increased both self-blame and blaming the app, and made them recall more failed attempts to cut back. The addiction framing itself creates a feeling of helplessness! The addiction to “addiction framing” may be a big part of the problem!

It is impressive that even the two-minute exposure to addiction framing in our research was sufficient to produce a statistically significant negative impact on users. This effect is aligned with past literature showing that merely seeing addiction scales can negatively impact feelings of well-being. Presumably, continued exposure to the broader media narrative around social media addiction has even larger and more profound effects. In conclusion, the addiction label does not empower users to regain control over their use. Instead, it hinders users by reducing feelings of control, increasing self-blame, and making the experience slightly less positive.

Perhaps one could argue that everyone screaming about social media addiction is doing more real harm than any actual social media product itself.

This matters because for the vast majority of heavy social media users, the problem isn’t addiction in any clinical sense. It’s habit. Habits and addictions are different psychological phenomena requiring different interventions. As the researchers note:

For the majority of social media users, however, curbing excessive use involves primarily controlling habits. Like any other habit, social media habits can become misaligned with the original motivations for use (e.g., to obtain social rewards), or conflict with other goals (e.g., sharing true information). Strong habits are notoriously difficult to control with willpower alone. For habitual social media users, the narrative of addiction and willpower-based attempts to control behavior could profitably be replaced with habit change strategies to realign their social media use with their current preferences.

Habits are context-triggered automatic behaviors. You pick up your phone in certain situations because you’ve done it a thousand times before, not because you’re experiencing withdrawal symptoms or uncontrollable cravings, like an addiction. And habit change strategies—like removing triggers, changing your environment, or practicing substitute activities—are fundamentally different from addiction treatment.

But you wouldn’t know any of this from the media coverage. The researchers analyzed three years of news articles and found that stories about “social media addiction” vastly outnumber stories about “social media habits.” The addiction framing is everywhere. And every time the Surgeon General warns about addiction, every time a lawsuit alleges platforms are designed to be addictive, every time a news story describes teens as hooked, it reinforces the idea that users are powerless victims.

Indeed, the study found that the very lawsuits that went to trial this week are likely contributing to the problem.

In addition, over the 36 assessment months, the number of articles discussing “social media habits” never approached the number of articles including the term “social media addiction” (see Fig. 2). The stories driving these effects were often lawsuits. For example, the May 2022 and October 2024 peaks for “social media addiction” related to news reporting on multiple lawsuits against Meta (owners of Instagram). In addition, the May 2023 Surgeon General’s warning about social media addiction seems to have contributed to the steady drumbeat of new articles during the April-June 2023 period for “social media addiction.”

To be clear: most social media companies absolutely design their products with increasing engagement in mind. There are plenty of corporate incentives to keep you using the app longer. And some people genuinely do use social media in ways that harm their lives. Both things can be true while “addiction” remains the wrong frame. The question is whether calling it an addiction actually helps anyone, or whether it just makes people feel powerless.

But there’s a meaningful difference between “this product is designed to form habits” and “this product is chemically addictive like heroin.” A chemical addiction involves tolerance, withdrawal, and physiological dependence. The study found that only about 4% of users reported experiencing anything akin to withdrawal symptoms (restlessness or trouble when prohibited from using) often or very often. The most common “symptom” was simply thinking about Instagram a lot—which probably describes anyone who uses any service frequently.

I think about Techdirt a lot. Am I “addicted” to it?

The addiction framing removes human agency from the equation. It treats users as helpless victims who can’t possibly resist the siren song of the infinite scroll. But the same study that found 2% of users at risk for addiction also found that 50% of frequent users recognized they had habits around Instagram use. Those users aren’t powerless. They can change their environment, their cues, their routines. But first they have to believe that’s possible—and the addiction narrative tells them it isn’t.

Misclassifying frequent social media and technology use as addictive has muddled public understanding of the psychology behind these behaviors and likely inhibits users’ understanding of the ways to effectively control their own behavior.

It also makes the technology appear inherently harmful, when (as pretty much every study keeps showing) only a very small percentage of people seem to have truly negative experiences with it. That should be cause to create targeted solutions for those who are genuinely struggling, not to declare an entire category of technology dangerous for everyone.

So here we are: lawsuits claiming to protect users from social media’s harms may themselves be contributing to those harms by amplifying the addiction narrative. The lawyers will get paid either way. But if we actually want to help people develop healthier relationships with technology, we could start by not telling them they’re powerless addicts—and instead give them the tools to change their habits.

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Founders underestimate the number of things that have to go right for a company to succeed. Their technology can work perfectly, and the clinical data can look great, yet the business is still at high risk of failure.

To succeed, founders should be encouraged to focus on the three most important things to make a medtech startup successful, or as I call it, the “success triangle”: regulatory authorization, funding, and reimbursement. Most startups over-index on one or two of these elements and assume the rest will fall into place. That’s where promising innovations stall. To reach patients, healthcare professionals, purchasers, and payers and become a profitable business, all three sides of the triangle must be built together from day one and informed by the perspectives of each of these groups.

Regulatory success is just the beginning

Founders sometimes treat FDA authorization like the finish line when it’s really the starting gun. I’ve seen startup teams cry tears of joy the moment their device is cleared, only to realize later that getting market authorization was one of the easiest milestones to reach. Getting paid, covered, and achieving product adoption are far more challenging.

Still, regulatory success remains the foundation, and it almost always takes longer and costs more than founders expect. A common mistake is treating quality as a compliance requirement rather than a competitive advantage. While a strong quality management system is table stakes, the overall quality of your submission, including the robustness of the supporting science, determines your speed to authorization and your credibility with investors and partners.

Companies that treat the FDA as an adversary or don’t engage with the FDA early on usually regret it. The agency’s pre-submission process exists to help you avoid deficiencies that can delay market authorization by months or even years. Skipping those early conversations can be an extremely costly or even fatal mistake.

Regulatory authorization also needs to be viewed in the context of evidence. Most startups design their first study purely around regulatory endpoints, but a study that satisfies FDA safety and efficacy endpoints will almost certainly not satisfy the evidence needs of payers or hospital value committees. Building regulatory and reimbursement evidence in parallel can shorten your time to revenue by years.

Many startups seek the easiest regulatory path to market by pursuing lower-risk claims that entail less science and qualify for 510(k) review with no clinical evidence, rather than the intended use for which they actually want providers/patients to use their device. This strategy often leads to eventual failure. Startups that shortchange their clinical studies to save time and money risk not only FDA authorization but meaningful evidence to support adoption and reimbursement.

Fundraising for adoption, not “approval”

Every medtech founder knows they’ll need capital, but not every founder understands how much or how long it takes to reach sustainable adoption. Too many companies raise just enough to “get to FDA approval.” That may work on paper, but in practice, it leaves you stuck in the mud right after this critical milestone. Investors today often want to see early commercial traction, payer coverage, and physician adoption before committing more capital.

The solution is to fundraise to adoption milestones, not to regulatory finish lines. That means budgeting for evidence generation, payer engagement, contracting, and sales infrastructure. Sophisticated investors today underwrite to adoption, not authorization.

Founders must also understand their investors’ expectations. Some funds must return money in three years; others can hold for longer. If your path to market requires seven years and your investor’s timeline is half that, they may force a premature sale or shift your priorities in ways that reduce your upside long-term.

I’ve seen founders spend years building a product only to walk away from an acquisition with little or nothing after investors recoup their stakes. That outcome can be avoided. The right investors are the ones whose timelines match your company’s roadmap.

Reimbursement: The most misunderstood side of the triangle

Among the three sides of the triangle, reimbursement is still the most misunderstood. Founders frequently assume that if a reimbursement code exists, they’re covered. However, coding, coverage, and payment are not interchangeable. A code simply allows a provider to bill; it doesn’t guarantee that payers will cover the procedure or that the manufacturer will receive a meaningful share of the payment.

Founders often mistake the payment associated with a single CPT code as their full opportunity. They fail to realize that the device portion of the payment may only be a fraction of that amount or, worse, that payers may not cover their device at all. Others assume their newer, lower-cost alternative will inherit historical payment levels. When overall costs drop, payers are likely to recalibrate downward.

The companies that succeed treat reimbursement as design criteria. They build early relationships with payers, model economics across care settings, and incorporate health-economic and real-world endpoints into their studies. Innovators need to recognize that disruptive technologies that adversely impact existing provider reimbursement may encounter additional obstacles if that issue is not effectively addressed in their commercialization strategy. A little foresight here can save years of delay later.

But payment is only part of the equation. Market access is just as critical. Many health systems buy products through group purchasing organizations (GPOs). If you’re not “on contract,” physicians often can’t use your product, no matter how much they want to. Some GPOs offer off-cycle pathways for breakthrough technologies or “unhealthy” categories where they want more supplier diversity, but those opportunities require evidence and planning.

Finally, don’t underestimate the influence of medical societies and key publications. Your publication strategy should start at the same time as your regulatory strategy, with the goal of publishing studies sufficient to meet the needs of payers, not just the FDA. Specialty organizations often help shape coding, coverage, and clinical guidelines. Publishing in the journals your buyers read and building advocacy within the societies that set standards can do more for adoption than a refreshed investor deck.

The point of the triangle

Most startup failures are caused by avoidable mistakes, such as misaligned investors, underfunded evidence generation plans, weak quality systems and strategy, or postponing reimbursement planning until it’s too late.

From the earliest stages, your plan must include meaningful dialogue with patients, healthcare professionals, purchasers, and payers. Understand that their perspectives and needs will often differ, and you will constantly need to recalibrate your expectations on whether your technology is not only addressing a real clinical need but one that is worth the expense, time, and human capital that it will take to succeed in the market.

That’s why the success triangle matters. Innovators who holistically develop their products, studies, and payment strategy with all three sides in mind will reduce risks, spend less, and reach profitability sooner. Those who don’t will learn the same hard lesson: clinical needs may open the door, but an integrated regulatory, reimbursement, and funding strategy is what lets you walk through it.

Paul Grand is widely recognized as the leading expert in medtech startups and a transformative force in the industry. He is the CEO and founder of MedTech Innovator, the premier global accelerator for medical technology companies. A lifelong entrepreneur, Grand brings a founder’s mindset and a venture capitalist’s expertise to empowering early-stage innovators. Driven by his belief in the power of mentorship and the need to eliminate avoidable startup mistakes, he created MedTech Innovator to bridge critical gaps in funding, strategy, and commercialization. Leveraging its world-leading ecosystem of thousands of experts and partnerships with 35 leading corporate sponsors, professional societies, and federal agencies, MedTech Innovator provides a platform to connect startups with the mentorship, funding, and industry relationships they need to succeed. Under Grand’s leadership, MedTech Innovator has fostered the world’s most impactful medtech ecosystem, helping nearly 1,000 graduates successfully bring their technologies to market, raise billions in follow-on funding, and improve millions of lives.

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AT&T and Verizon, two of the compromised companies, apparently didn’t think it was worth informing subscribers any of this happened. Many of the attack vectors were based on simple things like telecom administrators failing to change default passwords on sensitive hardware entry points.

The hack, caused in part by our mindless deregulation and lax oversight of telecom monopolies, only saw a tiny fraction of the press and public attention reserved for our multi-year, mass hyperventilation about TikTok privacy and security. But on their way out the door, Biden FCC officials did try to implement some very basic cybersecurity safeguards, requiring that telecoms try to do a better job securing their networks and informing customers of breaches.

Enter the Trump FCC under Brendan Carr, which is now rescinding that entire effort because lobbyists at AT&T, Verizon, Comcast, and Charter told them to:

“The Federal Communications Commission will vote in November to repeal a ruling that requires telecom providers to secure their networks, acting on a request from the biggest lobby groups representing Internet providers.”

In a folksy Halloween blog post, Carr tries to pretend this somehow improves cybersecurity. According to Carr, ISPs pinky swore that everything is fine now, and frames obvious regulatory capture as the agency being more “agile”:

“Following extensive FCC engagement with carriers, the item announces the substantial steps that providers have taken to strengthen their cybersecurity defenses. In doing so, we will also reverse an eleventh hour CALEA declaratory ruling reached by the prior FCC—a decision that both exceeded the agency’s authority and did not present an effective or agile response to the relevant cybersecurity threats. So, we’re correcting course.”

Let me be clear about something: the Biden rules were the absolute baseline for oversight of telecom, basically requiring that ISPs do the absolute bare minimum when it comes to securing their networks, while being transparent with the public about when there’s been a major hack. This stuff was the bare minimum, and the U.S. is too corrupt to even do that.

This is part of Carr’s effort to destroy whatever was left of flimsy U.S. corporate oversight of regional telecom monopolies so he can ensure he has a cushy post-government job at a telecom-funded think tank or lobbying org. To that end, he’s been taking a hatchet to the very shaky FCC oversight standards that already helped result in the worst hack in U.S. telecom history.

This is, you might recall, the same guy who spent the last few years constantly on television insisting that TikTok was the greatest cybersecurity threat facing the country, proclaiming he’d be using nonexistent authority to take aim at the company (which, as we found out later, was really about offloading TikTok to Trump’s buddies and protecting Facebook from competition it couldn’t out-innovate).

The Trump administration has also gutted government cybersecurity programs (including a board investigating the Salt Typhoon hack), dismantled the Cyber Safety Review Board (CSRB) (responsible for investigating significant cybersecurity incidents), and fired oodles of folks doing essential work at the Cybersecurity and Infrastructure Security Agency (CISA).

Carr is also derailing FCC plans to impose some baseline cybersecurity standards on “smart” home devices based on some completely fabricated, xenophobic claims about one of the planned vendors (again, because telecoms simply don’t want any oversight whatsoever).

It’s yet another example of how Trump policy is indistinguishable from a foreign attack. In many ways it’s worse, given that at least with Russia, Iran, and China, you’re spared the kind of phony piety and sanctimony coming from inside your own house.

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Let’s consider how much content contends for our attention. On a typical workday, I receive between 200 and 300 emails, 100 to 200 text messages, 100 or more instant messages across various social media platforms, and over 50 voicemails on both my cell and work lines. The only way to manage this much input is to triage what’s essential and what is not and do my best to respond as quickly and succinctly as possible. This process may be effective for managing my inbox, but it hinders my ability to pay attention and communicate effectively.

And in all of our hands, our smartphones are daily and hourly chipping away at a fundamental skill: paying attention and focusing.

No matter how much we work on our listening and attention skills, our phones pull us toward distraction, reaction, and a lack of focus. And invariably, even if we work on listening and paying attention to others, there’s little hope that we can get others to do the same. We must acknowledge that most of the people we deal with are perpetually distracted, overwhelmed, and drowning in emails, phone messages, instant messages, news notifications, and other matters.

Because we are all overwhelmed with so many incoming messages and notifications, we play an essential role in not adding to the cacophony.

This is what I do to facilitate communication with others who are already overwhelmed by it.

First, adapt to your audience’s preferred communication method. Whether it’s voicemails, emails, text messages, or instant messages, meet them where they’re at.

Second, I get to the point and use bullet points. Sometimes longer communications are unavoidable, but that does not mean you cannot do everything you can to shorten and streamline them.

I typically start an email with a topic sentence that outlines what I’m delving into, then provide a series of titles, subtitles, and bullet points that the reader can easily follow and refer to later if needed. My communications are not meant to benefit me. They are intending to help the recipient, and to do so, I want to make it as easy as possible for them to identify and process the information I am conveying.

Third, I avoid digressions, anecdotes, humor, and related issues unless the situation absolutely calls for it. My job is to get in, share information, and get out.

I’m not trying to receive an award as a humorist or a Pulitzer. I am perpetually aware and appreciate that I’m intruding on someone’s attention and time, and I want the intrusion to be as limited and painless as possible.

A caveat is warranted. The communications I speak of are business-related. It’s easy to transfer these pointed and direct communications into your personal relationships. Please don’t. Your family and friends want to hear from you. They want to talk to you. They don’t want yes-or-no answers. They want something more. So often, we lawyers bring our work home with us, cross-examining and interrogating our families at the dinner table. Let’s not apply our business-style communication to home or to friends.

In addition to written communications, let’s address our oral communications with others. Again, the focus is on getting to the point, answering the questions posed, and providing solutions and resolutions clearly and positively. So often, I’ve been on business calls or on Zoom or Teams, and someone is overextending their welcome by discussing unrelated items, not getting to the point, and prolonging the conversation. Perhaps they think that the more they talk, the more in control they are or the better they will be remembered. They will be remembered for all the wrong reasons. I’ve never been in a meeting where someone said I wish it were longer. Or I wanted that person to have talked more. You have more impact with the less you say. If you’re always talking, people are listening less, and when you make a strong point, others are likely to ignore it. Say only what’s needed and move on.

Remember, in all forms of communication, less is more. Getting to the point is key. Making information digestible and easy to process is crucial. There are times when soaring oratory is required. But for the rest of the time, keep it short and to the point. Your audience will appreciate the clarity and brevity.

Frank Ramos is a partner at Goldberg Segalla in Miami, where he practices commercial litigation, products, and catastrophic personal injury. You can follow him on LinkedIn, where he has about 80,000 followers.

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Former Google and Stripe executive Alex Komoroske (who recently wrote for us about why the future of AI need not be centralized) has written an equally brilliant analysis  that traces all of these problems back to something called the “same origin paradigm”—a quick security fix that Netscape’s browser team implemented one night in the 1990s that somehow became the invisible physics governing all modern software.

The same origin paradigm is simple but devastating: Every website and app exists in its own completely isolated universe. Amazon and Google might as well be on different planets as far as your browser is concerned. The Instagram app and the Uber app on your phone can never directly share information. This isolation was meant to keep you safe, but it created something Komoroske calls “the aggregation ratchet”—a system where data naturally flows toward whoever can accumulate the most of it.

This is a much clearer explanation of a problem I identified almost two decades ago—the fundamental absurdity of having to keep uploading the same data to new services, rather than being able to tell a service to access our data at a specific location on the internet. Back then, I argued that the entire point of the open internet shouldn’t be locking up data in private silos, but enabling users to control their data and grant services access to it on their own terms, for their own benefit.

What Komoroske’s analysis reveals is the architectural root cause of why that vision failed. The “promise” of what we optimistically called “the cloud” was that you could more easily connect data and services. The reality became a land grab by internet giants to collect and hold all the data they could. Now we understand why: the same origin paradigm made the centralized approach the path of least resistance.

As Komoroske explains, this architectural choice creates an impossible constraint for system designers.

This creates what I call the iron triangle of modern software. It’s a constraint that binds the hands of system designers—the architects of operating systems and browsers we all depend on. These designers face an impossible choice. They can build systems that support:

• Sensitive data (your emails, photos, documents)
• Network access (ability to communicate with servers)
• Untrusted code (software from developers you don’t know)

But they can only enable two at once—never all three. If untrusted code can both access your sensitive data and communicate over the network, it could steal everything and send it anywhere.

So system designers picked safety through isolation. Each app becomes a fortress—secure but solitary. Want to use a cool new photo organization tool? The browser or operating system forces a stark choice: Either trust it completely with your data (sacrificing the “untrusted” part), or keep your data out of it entirely (sacrificing functionality).

Even when you grant an app or website permission only to look at your photos, you’re not really saying, “You can use my photos for this specific purpose.” You’re saying, “I trust whoever controls this origin, now and forever, to do anything they want with my photos, including sending them anywhere.” It’s an all-or-nothing proposition.

This creates massive friction every time data needs to move between services. But that friction doesn’t just slow things down—it fundamentally reshapes where data accumulates. The service with the most data can provide the most value, which attracts more users, which generates more data. Each click of the ratchet makes it harder for new entrants to compete.

Consider how you might plan a trip: You’ve got flights in your email, hotel confirmations in another app, restaurant recommendations in a Google document, your calendar in yet another tool. Every time you need to connect these pieces you have to manually copy, paste, reformat, repeat. So you grant one service (like Google) access to all of this. Suddenly there’s no friction. Everything just works. Later, when it comes time to share your trip details with your fellow travelers, you follow the path of least resistance. It’s simply easier to use the service that already knows your preferences, history, and context.

The service with the most data can provide the most value, which attracts more users, which generates more data. Each click of the ratchet makes it harder for new entrants to compete. The big get bigger not because they’re necessarily better, but because the physics of the system tilts the playing field in their favor.

This isn’t conspiracy or malice. It’s emergent behavior from architectural choices. Water flows downhill. Software with the same origin paradigm aggregates around a few dominant platforms.

Enter artificial intelligence. As Komoroske notes, AI represents something genuinely new: it makes software creation effectively free. We’re entering an era of “infinite software”—endless custom tools tailored to every conceivable need.

AI needs context to be useful. An AI that can see your calendar, email, and documents together might actually help you plan your day. One that only sees fragments is just another chatbot spouting generic advice. But our current security model—with policies attached at the app level—makes sharing context an all-or-nothing gamble.

So what happens? What always happens: The path of least resistance is to put all the data in one place.

Think about what we’re trading away: Instead of the malleable, personal tools that Litt envisions, we get one-size-fits-all assistants that require us to trust megacorporations with our most intimate data. The same physics that turned social media into a few giant platforms is about to do the same thing to AI.

We only accept this bad trade because it’s all we know. It’s an architectural choice made before many of us were born. But it doesn’t have to be this way—not anymore.

But here’s the hopeful part: the technical pieces for a fundamentally different approach are finally emerging. The hopes I had two decades ago about the cloud being able to separate us from having to let services collect and control all our data may finally be possible.

Perhaps most interestingly, Komoroske argues that the technological element that makes this possible is the secure enclaves now found in chips. This is actually a tech that many of us were concerned would lead to the death of general purpose computers, and give more power to the large companies. Cory Doctorow has warned about how these systems can be abused—he calls them Demon-haunted computers—but could we also use that same tech to regain control?

That’s part of Komoroske’s argument:

These secure enclaves can also do something called remote attestation. They can provide cryptographic proof—not just a promise, but mathematical proof—of exactly what software is running inside them. It’s like having a tamper-proof seal that proves the code handling your data is exactly what it claims to be, unmodified and uncompromised.

If you combine these ingredients in just the right way, what this enables, for the first time, are policies attached not to apps but to data itself. Every piece of data could carry its own rules about how it can be used. Your photos might say, “Analyze me locally but never transmit me.” Your calendar might allow, “Extract patterns but only share aggregated insights in a way that is provably anonymous.” Your emails could permit reading but forbid forwarding. This breaks the iron triangle: Untrusted code can now work with sensitive data and have network access, because the policies themselves—not the app’s origin—control what can be done with the data.

Years of recognizing that Cory’s warnings are usually dead-on accurate has me approaching this embrace of secure enclaves with some amount of caution. The same underlying technologies that could liberate users from platform silos could also be used to create more sophisticated forms of control. But Komoroske’s vision represents a genuinely different deployment—using these tools to give users direct control over their own data and to cryptographically limit what systems can do with that data, rather than giving platforms more power to lock things down. The key difference is who controls the policies. (And I’m genuinely curious to hear what Cory thinks of this approach!)

The vision Komoroske paints is compelling: imagine tools that feel like extensions of your will, private by default, adapting to your every need—software that works for you, not on you. A personal research assistant that understands your note-taking system. A financial tracker designed around your specific approach to budgeting. A task manager that reshapes itself around your changing work style.

To the extent that any of this was possible before, it required you simply handing over all your data to a big tech firm. The possibility of being able to separate those things… is exciting.

This isn’t just about better apps. It’s about a fundamental shift in the power dynamics of the internet. Instead of being forced to choose between security and functionality, between privacy and convenience, we could have systems where those aren’t trade-offs at all.

The same origin paradigm got us here, creating the conditions for data monopolies and restricting user agency. But as Komoroske argues in both the piece he wrote for us and this new piece, we built these systems—we can build better ones. We might finally deliver on its promises of user empowerment rather than further concentration.

As we’ve argued at Techdirt for years, the internet works best when it empowers users rather than platforms. The same-origin paradigm was an understandable choice given the constraints of the 1990s. But we’re no longer bound by those constraints. The tools now exist to put users back in control of their data and their digital experiences.

We can move past the learned helplessness that has characterized the last decade of internet discourse. We can reject the false choice that says the only way to access powerful new technologies is to surrender our freedoms to tech giants. We can actually build toward a world where end users themselves have both the power and control.

We just need to embrace that opportunity, rather than assuming that the way the internet has worked for the past 30 years is the way it has to run going forward.

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The move? They sent a cease and desist letter to Joe Hall—demanding Hall delete a tweet. Not a tweet where he said anything defamatory. Not a tweet where he made false claims. Indeed, not a tweet where he said anything at all. Just… a tweet with a link. Literally, a URL to a Medium article discussing the AfriNIC saga, in which Cloud Innovation is a central player.

That’s the entire complaint: someone shared a link.

The letter, signed illegibly by someone calling themselves “Legal Counsel,” gives Hall 24 hours to remove his tweet sharing Emmanuel Vitus’s Medium article “AfriNIC: Hope, Hijack, and the Harsh Lessons of African Multistakeholderism” or face a lawsuit for “defamation, unlawful publication and dissemination of defamatory article.”

So, of course: you should go read that article. Cloud Innovation seems desperate for you not to. It’s also both a fascinating and depressing deep dive into what happened with AfriNIC—something I never would have learned about if Cloud Innovation hadn’t been so hellbent on making sure I never saw it.

Still let’s pause here to appreciate the legal theory being advanced by Cloud Innovation: that sharing a link to an article someone else wrote makes you liable for defamation. This is roughly equivalent to claiming that the person who hands you a newspaper is responsible for everything printed inside it.

The Backstory: AfriNIC’s Institutional Collapse

The article Hall shared tells a genuinely important story about AfriNIC, the African Network Information Centre responsible for distributing IP addresses across the continent. What was once a symbol of African digital sovereignty has been paralyzed by a number of issues, with much of it coming from an aggressive legal campaign from Cloud Innovation, which has filed dozens of lawsuits to block the registry’s governance and operations.

Among many other things, the piece details how Cloud Innovation obtained control of millions of IPv4 addresses—worth potentially hundreds of millions of dollars—and those IP addresses appeared to be “redirected to data centers abroad,” rather than used in Africa. When AfriNIC tried to audit and potentially reclaim these resources, Cloud Innovation responded with a legal blitz that has effectively shut down the institution.

More than fifty legal cases were filed in rapid succession. Some were emergency applications. Others aimed to freeze bank accounts, block board meetings, suspend elections, or issue restraining orders against AfriNIC’s leadership. The goal was not just to defend a legal position. It was to paralyze the registry entirely.

And it worked. As AfriNIC tried to clean up its records and assert control, it faced a coordinated legal pushback. Every step taken by the registry was met with a countermeasure in court. Every attempt at reform was slowed by injunctions. The legal process became a tool of exhaustion.

It’s a story of institutional capture, regulatory failure, and the vulnerability of critical internet infrastructure. Oh, and abuses of the legal system. In other words, exactly the kind of story that deserves widespread attention and discussion.

And also, exactly the kind of thing Hall, who is a distinguished technologist at the Internet Society, would want to share with his followers.

Enter the Streisand Effect

Which brings us to… well… you know. By trying to suppress discussion of an article that documents their use of aggressive legal tactics to silence critics, they’ve… used aggressive legal tactics to try to silence a critic.

And they didn’t just go after Hall. According to the response letter, “substantially identical letters were sent to other people who posted links to the same article.” Multiple people have reported receiving similar threats just for sharing the link (and, tragically, it appears at least some removed their tweets).

Either way, the end result is that way more attention is likely to go to the underlying story than it would have received otherwise. Before the legal threats, this was a somewhat niche piece about African internet governance. Now it’s a case study in how not to handle public criticism.

And a reason to read the article.

How to Respond to a Censorial Legal Threat

Hall’s response, crafted by lawyer Kendra Albert of Albert Sellars LLP, is a masterclass in how to handle bullshit legal threats. The letter methodically demolishes Cloud Innovation’s claims on multiple grounds:

Section 230 immunity: Hall shared someone else’s content on a platform (ExTwitter). Section 230 explicitly protects users from being treated as publishers of third-party content. Game over.

Fair report privilege: The article reports on actual legal proceedings that Cloud Innovation filed. Accurate reporting on court cases is privileged from defamation claims.

No false statements identified: The cease and desist letter doesn’t point to any specific false statements, let alone prove they’re false.

Public figure standard: Even if the above didn’t apply, under US law, Cloud Innovation would need to prove “actual malice”—that Hall knew the statements were false or showed reckless disregard for their truth.

The SPEECH Act: Even if Cloud Innovation won a defamation judgment in another country, they couldn’t enforce it in the U.S. without meeting American free speech standards.

You can read through the analysis of all of those, but just to whet your appetite, here was the description of the third item in that list:

Even if Dr. Hall was the original author and thus not immunized by Section 230, and even if the fair report privilege did not apply, Cloud Innovation’s claim would fail for a third reason. Under the First Amendment, Cloud Innovation Ltd would need to show that a defamation defendant published an identifiable false statement of fact that harmed its reputation, and that the speaker did so with the requisite level of intent. Cloud Innovation has already admitted that the facts in Mr. Vitus’ article are true, and any statements of opinion cannot be defamatory under U.S. law. Cloud Innovation would also have to identify those statements with specificity. We note that your letter does not identify any particular false statements in Mr. Vitus’s article, let alone any such statements from Dr. Hall.

The response letter notes that “it would be inappropriate for legal counsel to send a demand letter without research, which should have turned up at least one of the five independent reasons why Cloud Innovation has no claim against Dr. Hall.”

It concludes:

We will refrain from providing a count of the reasons why a lawyer from any jurisdiction should know better than to use baseless threats to intimidate a perceived critic.

Ouch.

The Bigger Picture: Standing Up to Censorial Bullies

This case, once again, illustrates why we need more people willing to stand up to legal intimidation, as Hall has done here. The letter he received was clearly designed to shut down discussion through intimidation, not to address any legitimate legal grievance.

The 24-hour deadline. The vague threats. The failure to identify specific false statements. The targeting of multiple people for simply sharing a link. These are all classic signs of a SLAPP attempt—designed to chill speech through the threat of expensive litigation.

And it’s working on some people. As the letter notes, at least one person has already deleted their tweet in response to the threat. That’s exactly what these campaigns are designed to achieve: silence through intimidation.

Of course, now Cloud Innovation’s legal strategy about the story has become part of the story, perhaps the key part of the story. The original article documented how the company used aggressive litigation to paralyze AfriNIC’s governance. Now they’re using similar tactics to try to suppress discussion of that very behavior.

The crazy thing about the Streisand Effect is that it’s so predictable, yet people keep falling for it. It’s like watching someone step on the same rake over and over again, except the rake is “trying to suppress information in the internet age” and the person is “a company that should probably know better.”

So, if you hadn’t checked it out yet, now is a good time to read Vitus’ reporting on AfriNIC.

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The core issue is that most people fundamentally misunderstand both how content moderation works and what drives platform incentives. There’s a persistent myth that companies could achieve near-perfect moderation if they just “tried harder” or faced sufficient legal consequences. This ignores the mathematical reality of what happens when you attempt to moderate billions of pieces of content daily, and it misunderstands how liability actually changes corporate behavior.

Part of the confusion, I think, stems from people’s failure to understand the impossibility of doing content moderation well at scale. There is a very wrong assumption that social media platforms could do perfect (or very good) content moderation if they just tried harder or had more incentive to do better. Without denying that some entities (*cough* ExTwitter *cough*) have made it clear they don’t care at all, most others do try to get this right, and discover over and over again how impossible that is.

Yes, we can all point to examples of platform failures that are depressing and seem obvious that things should have been done differently, but the failures are not there because “the laws don’t require it.” The failures are because it’s impossible to do this well at scale. Some people will always disagree with how a decision comes out, and other times there are no “right” answers. Also, sometimes, there’s just too much going on at once, and no legal regime in the world can possibly fix that.

Given all of that, what we really want are better overall incentives for the companies to do better. Some people (again, falsely) seem to think the only incentives are regulatory. But that’s not true. Incentives come in all sorts of shapes and sizes—and much more powerful than regulations are things like the users themselves, along with advertisers and other business partners.

Importantly, content moderation is also a constantly moving and evolving issue. People who are trying to game the system are constantly adjusting. New kinds of problems arise out of nowhere. If you’ve never done content moderation, you have no idea how many “edge cases” there are. Most people—incorrectly—assume that most decisions are easy calls and you may occasionally come across a tougher one.

But there are constant edge cases, unique scenarios, and unclear situations. Because of this, every service provider will make many, many mistakes every day. There’s no way around this. It’s partly the law of large numbers. It’s partly the fact that humans are fallible. It’s partly the fact that decisions need to be made quickly without full information. And a lot of it is that those making the decisions just don’t know what the “right” approach is.

The way to get better is constant adjusting and experimenting. Moderation teams need to be adaptable. They need to be able to respond quickly. And they need the freedom to experiment with new approaches to deal with bad actors trying to abuse the system.

Putting legal liability on the platform makes all of that more difficult

Now, here’s where my concerns about the potential ruling in Brazil get to: if there is legal liability, it creates a scenario that is actually less likely to lead to good outcomes. First, it effectively requires companies to replace moderators with lawyers. If your company is now making decisions that come with significant legal liability, that likely requires a much higher type of expertise. Even worse, it’s creating a job that most people with law degrees are unlikely to want.

Every social media company has at least some lawyers who work with their trust & safety teams to review the really challenging cases, but when legal liability could accrue for every decision, it becomes much, much worse.

More importantly, though, it makes it way more difficult for trust & safety teams to experiment and adapt. Once things include the potential of legal liability, then it becomes much more important for the companies to have some sort of plausible deniability—some way to express to a judge “look, we’re doing the same thing we always have, the same thing every company has always done” to cover themselves in court.

But that means that these trust & safety efforts get hardened into place, and teams are less able to adapt or to experiment with better ways to fight evolving threats. It’s a disaster for companies that want to do the right thing.

The next problem with such a regime is that it creates a real heckler’s veto-type regime. If anyone complains about anything, companies are quick to take it down, because the risk of ruinous liability just isn’t worth it. And we now have decades of evidence showing that increasing liability on platforms leads to massive overblocking of information. I recognize that some people feel this is acceptable collateral damage… right up until it impacts them.

This dynamic should sound familiar to anyone who’s studied internet censorship. It’s exactly how China’s Great Firewall originally operated—not through explicit rules about what was forbidden, but by telling service providers that the punishment would be severe if anything “bad” got through. The government created deliberate uncertainty about where the line was, knowing that companies would respond with massive overblocking to avoid potentially ruinous consequences. The result was far more comprehensive censorship than direct government mandates could have achieved.

Brazil’s proposed approach follows this same playbook, just with a different enforcement mechanism. Rather than government officials making vague threats, it would be civil liability creating the same incentive structure: when in doubt, take it down, because the cost of being wrong is too high.

People may be okay with that, but I would think that in a country with a history of dictatorships and censorship, they would like to be a bit more cautious before handing the government a similarly powerful tool of suppression.

It’s especially disappointing in Brazil, which a decade ago put together the Marco Civil, an internet civil rights law that was designed to protect user rights and civil liberties—including around intermediary liability. The Marco Civil remains an example of more thoughtful internet lawmaking (way better than we’ve seen almost anywhere else, including the US). So this latest move feels like backsliding.

Either way, the longer-term fear is that this would actually limit the ability of smaller, more competitive social media players to operate in Brazil, as it will be way too risky. The biggest players (Meta) aren’t likely to leave, but they have buildings full of lawyers who can fight these lawsuits (and often, likely, win). A study we conducted a few years back detailed how as countries ratcheted up their intermediary liability, the end result was, repeatedly, fewer online places to speak.

That doesn’t actually improve the social media experience at all. It just gives more of it to the biggest players with the worst track records. Sure, a few lawsuits may extract some cash from these companies for failing to be perfect, but it’s not like they can wave a magic wand and not let any “criminal” content exist. That’s not how any of this works.

Some responses to issues raised by critics

When I wrote about this on a brief Bluesky thread, I received hundreds of responses—many quite angry—that revealed some common misunderstandings about my position. I’ll take the blame for not expressing myself as clearly as I should have and I’m hoping the points above lay out the argument more clearly regarding how this could backfire in dangerous ways. But, since some of the points were repeated at me over and over again (sometimes with clever insults), I thought it would be good to address some of the arguments directly:

But social media is bad, so if this gets rid of all of it, that’s good. I get that many people hate social media (though, there was some irony in people sending those messages to me on social media). But, really what most people hate is what they see on social media. And as I keep explaining, the way we fix that is with more experimentation and more user agency—not handing everything over to Mark Zuckerberg and Elon Musk or the government.

Brazil doesn’t have a First Amendment, so shut up and stop with your colonialist attitude. I got this one repeatedly and it’s… weird? I never suggested Brazil had a First Amendment, nor that it should implement the equivalent. I simply pointed out the inevitable impact of increasing intermediary liability on speech. You can decide (as per the comment above) that you’re fine with this, but it has nothing to do with my feelings about the First Amendment. I wasn’t suggesting Brazil import American free speech laws either. I was simply pointing out what the consequences of this one change to the law might create.

Existing social media is REALLY BAD, so we need to do this. This is the classic “something must be done, this is something, we will do this” response. I’m not saying nothing must be done. I’m just saying this particular approach will have significant consequences that it would help people to think through.

It only applies to content after it’s been adjudicated as criminal. I got that one a few times from people. But, from my reading, that’s not true at all. That’s what the existing law was. These rulings would expand it greatly from what I can tell. Indeed, the article notes how this would change things from existing law:

The current legislation states social media companies can only be held responsible if they do not remove hazardous content after a court order.

[….]

Platforms need to be pro-active in regulating content, said Alvaro Palma de Jorge, a law professor at the Rio-based Getulio Vargas Foundation, a think tank and university.

“They need to adopt certain precautions that are not compatible with simply waiting for a judge to eventually issue a decision ordering the removal of that content,” Palma de Jorge said.

You’re an anarchocapitalist who believes that there should be no laws at all, so fuck off. This one actually got sent to me a bunch of times in various forms. I even got added to a block list of anarchocapitalists. Really not sure how to respond to that one other than saying “um, no, just look at anything I’ve written for the past two and a half decades.”

America is a fucking mess right now, so clearly what you are pushing for doesn’t work. This one was the weirdest of all. Some people sending variations on this pointed to multiple horrific examples of US officials trampling on Americans’ free speech, saying “see? this is what you support!” as if I support those things, rather than consistently fighting back against them. Part of the reason I’m suggesting this kind of liability can be problematic is because I want to stop other countries from heading down a path that gives governments the power to stifle speech like the US is doing now.

I get that many people are—reasonably!—frustrated about the terrible state of the world right now. And many people are equally frustrated by the state of internet discourse. I am too. But that doesn’t mean any solution will help. Many will make things much worse. And the solution Brazil is moving towards seems quite likely to make the situation worse there.

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President Donald Trump threw a lifeline to TikTok in January, and he did it again in April. Now, a repeat performance is widely expected by Thursday, when his latest extension is due to run out.

Trump keeps ordering the Justice Department not to enforce a bipartisan law that was intended to ban TikTok nationwide as of Jan. 19 as long as the video-sharing platform remains controlled by its Chinese parent company, ByteDance Ltd.

Enough of the threatening to take your ball home because the score isn’t going your team’s way! If Trump decides against extending the TikTok deadline, it will probably be because of how bad his little no-show birthday parade is getting flamed:

View the original article to see embedded media.

This is par for the course when you determine the legality of a thing not based on the law or the Constitution, but the ego of the lead dude in charge. It is hard to oversell the importance of TikTok as an American soft power platform — and given that the majority of the content is decidedly against American state doxa, I’d assume that access to the app is teetering toward the liability side of the equation.

Keep in mind that the original justification for the ban from January, national security concerns, loses steam as each day compounds without clear proof of some dastardly information breach. We have until Thursday to see what happens. In the meantime, hop on the newest Keith Lee dance trend to get as many followers as you can before the state stamps out a major speech platform:

View the original article to see embedded media.

Trump Is Set To Delay The TikTok Ban Again. Could He Face A Lawsuit? [Market Watch]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s . He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who is learning to swim, is interested in critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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The answer is that we need both.

The future of deterrence and warfighting depends on an industrial base that is not divided, but diversified and unified to face China. That requires public policy and acquisition strategies that support collaboration across the full range of defense suppliers from long-established prime contractors to boutique software firms. Any effort that privileges one group over the other, whether in rhetoric, regulation, or law ultimately undermines the shared goal of delivering capability at speed and scale.

There is a growing narrative in the defense acquisition space that supports a pivot away from established firms toward non-traditional contractors: venture-backed software startups, commercial cloud providers, and agile systems integrators. These firms are undeniably important. They bring fresh eyes and a tolerance for risk that accelerates prototyping and field experimentation. However, in the enthusiasm to embrace the new, there is a risk that we overlook the indispensable capabilities of the defense primes, companies that have built and sustained the most sophisticated and lethal military in the world.

Instead of pitting one side against the other, our acquisition policy must reflect an all-of-industry approach. It must incentivize the participation of all qualified contributors, both those who can deliver capability at scale and those who can accelerate innovation, with the end goal of providing the best systems for the American warfighter that money can buy.

Primes, New Entrants Both Have Roles To Play

Established defense prime contractors offer critical advantages to the US industrial base. Their decades of experience working with the military services and other defense agencies have cultivated institutional knowledge and program management capabilities that are simply unmatched. These firms understand the regulatory environment, interoperability standards that ensure effective integration, and the rigorous certification processes needed. They have also invested heavily in physical infrastructure, personnel, and supply chains. It would take years and billions of dollars to duplicate such assets.

Equally important, these firms have demonstrated the ability to manufacture at scale, support sustainment operations around the world, and surge production during wartime. Their century-long legacy of performance has produced the vehicles, ships, aircraft, spacecraft, and C2 networks that form the backbone of American military power.

This is not an industrial legacy to be discarded. It is a foundation on which to build.

At the same time, non-traditional contractors — especially those emerging from Silicon Valley — are increasing their contribution to the defense ecosystem. Microsoft, Amazon Web Services, and Google are advancing artificial intelligence and cloud computing. Newcomers like Anduril, Palantir, and ShieldAI are rethinking autonomous systems and battlefield data fusion. These companies excel at moving fast, challenging assumptions, and rapidly prototyping solutions.

Their value lies not only in their advanced tech, but in their approach. They are often unencumbered by legacy approaches, and they push the Department of Defense to consider new paradigms in artificial intelligence and off-the-shelf technology. Their contributions are vital to accelerating change in areas like AI-empowered decision making and integration of UAVs with manned systems.

These firms also typically lack the scale and operational track record of more established counterparts. They are not prepared to sustain high-volume production lines, integrate hundreds of subcontractors, or manage long-term sustainment. Nor should they be expected to. Their particular strength is in blazing a new path, not mass industrial mobilization.

The Real Danger: A Divided Ecosystem

It is counterproductive — and strategically dangerous — to pursue policy frameworks that elevate one part of the industrial base at the expense of another. Preferential treatment, relaxed oversight, and fast-track acquisition authorities may benefit individual innovators in the short term, but they can undermine fairness, transparency, and the overall coherence of defense procurement.

For example, excluding certain firms from audit requirements or certified cost and pricing data obligations may seem like a way to reduce red tape. But when these exemptions are only extended to a narrow class of firms, they distort the playing field. If some rules are burdensome enough to be waived, we should consider whether they are necessary at all, not simply carve out exceptions based on funding source or growth trajectory.

Moreover, redefining eligibility for acquisition incentives in ways that privilege venture-backed firms over others sends the wrong message: that financial structure matters more than capability. The Department of Defense must be corporation agnostic and business model neutral. The only program criteria that should matter are mission compliance, efficiency, and lethality.

The real goal of acquisition reform should be to build a defense industrial base that is fast, flexible, scalable, and resilient. That cannot be achieved by fragmenting the ecosystem. It requires interoperability not just across platforms, but across companies, sectors, and cultures. Traditional firms need to work with non-traditional partners. Commercial technologies must be adapted for defense applications. Industrial-scale manufacturing must be paired with digital agility.

Congress and the Department of Defense can facilitate this by crafting legislation and policy that incentivizes collaboration, not competition between sectors.

That means streamlining acquisition processes for all vendors, not just for start-ups; reforming audit and reporting requirements uniformly; expanding access to Rapid Prototyping Funds for both traditional and non-traditional companies; and encouraging arrangements that blend hard-earned experience with new ideas.

This is not only about a fair, competitive process, it’s about lethality. Deterring and, if necessary, defeating a peer adversary like the People’s Republic of China will demand a unified industrial effort, not a siloed or politicized one. The US military’s edge depends on the ability to harness both the muscle memory of industrial incumbents and the imagination of new entrants.

The Armed Services Committees are right to scrutinize how best to spend the trillion-dollar defense budget for FY26. But as they do so, they must resist the temptation to solve complexity with categorization — to label some firms as too slow or too beholden to bureaucracy, and others as inherently more valuable due to their funding structure or growth rate.

No single part of the defense sector holds a monopoly on virtue or effectiveness. Both traditional and non-traditional players have disadvantages in some fields and extraordinary potential in others.

The United States will not outcompete our adversaries by arguing over who gets to build the future. We will win by building the future together.

Jeff Kojac is Director of Studies at George Mason University’s Baroni Center for Government Contracting and adjunct faculty at the Costello College of Business. He is a member of the Council on Foreign Relations.

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“Detachment 201 is being created to bring in tech innovation executives leaders to help the Army … on broader conceptual things like talent management, how do we bring in tech focused people into the ranks of the military, and then, how do we train them,” Col. Dave Butler, the top spokesman for the Army Chief of Staff, told Breaking Defense.

This initial cohort of executives includes the chief technology officer from Palantir, Shyam Sankar, whose “Defense Reformation” website has become a talking point among defense tech community; Andrew Bosworth, the chief technology officer from Meta; Kevin Weil, OpenAI’s chief product officer and Bob McGrew who, until November, was chief research officer at at OpenAI. The Wall Street Journal first reported on the plan.

The four were sworn in ahead of the service’s 250th birthday celebration on Saturday, Butler said.

The move comes as the Trump administration embraces venture capital and tech industries, including VC-backed startups like Anduril, Palantir and others who have begun to take root as major players in the defense industrial base. The Trump administration’s nominee to take the reins as the Army’s No. 2 two civilian, Michael Obadal, is an Anduril employee.

Army Chief of Staff Gen. Randy George and Army Secretary Dan Driscoll have also been focused on giving tech startups and non-traditional defense companies a more prominent role inside the service. Driscoll has even called it a “success” if a large prime contractor closes its doors in the coming years if they can’t start operating more efficiently.

“I will measure it as success if in the next two years, one of the primes is no longer in business, and the rest of them have all gotten stronger,” he said in May on the TBPN podcast.

 As the new era of defense tech sweeps through the halls of the Pentagon and the Army stands up Detachment 201, Butler said the service will try to ensure that there isn’t a conflict of interest between the executives coming in as lieutenant colonels and the companies they still work for. (For instance, Meta and Anduril are teamed together to compete for the Army’s next-gen heads up display.)

“There’s plenty of precedent for this,” Butler said. “We’ve done this over and over when our nation needed top talent. The difference is we used to do it in wartime now we’re doing it ahead of wartime so that we can prepare and deter.”

“There’s an urgency to change and transform the Army and these guys [are] going to help,” he added.

As for what the founders of Detachment 201 will be doing, Butler said it is not expected to revolve around programs of record or big-ticket acquisitions. Instead, they will be looking at much “broader” topics and there will be firewalls in place to protect both the Army and their respective companies.

“Det. 201 is an effort to recruit senior tech executives to serve part-time in the Army Reserve as senior advisors,” an Army statement announcing the news said. “In this role they will work on targeted projects to help guide rapid and scalable tech solutions to complex problems. By bringing private-sector know-how into uniform, Det. 201 is supercharging efforts like the Army Transformation Initiative, which aims to make the force leaner, smarter, and more lethal.”

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One long-standing cybersecurity measure has been the ability to block malicious threats by Internet Protocol addresses. A public IP address is like your home’s street address on the Internet. It’s a unique number assigned to your internet connection by your service provider, allowing other devices and websites to find and communicate with you online.

Just like your home address lets mail reach your house, a public IP address helps websites, apps, and other online services know where to send data when you browse the internet.

System administrators and cybersecurity professionals used to spend countless hours updating block lists using the originating public IPs of ransomware attackers, spam and phishing senders, malicious websites, and sources of Denial of Service attacks. Maintaining these lists quickly proved ineffective. Just as soon as an IP address was added, the attacks would continue from a new IP address — like an internet-based game of Whac-A-Mole.

Facing the frustrations of maintaining these lists, administrators sought to block traffic based on geographical locations by blocking IP addresses leased or located in a particular country or region rather than by one at a time. On the face of it, this seems like a reasonable step to take, mainly when a business operates primarily in the United States and doesn’t likely need to access information or public websites hosted within countries often present on these lists — for example, North Korea, Iran, Russia, and China.

This approach has also worked reasonably well for law firms, restricting access to resources inside or originating from countries well-known to harbor cybersecurity attackers. An attacker based in China can’t obtain an IP address used or belonging to an Internet Service Provider based in the United Kingdom or European Union, right?

Cyberattackers Adjust Tactics

The first significant test to block traffic and malicious attacks based on the geographic location of IP addresses came with the usage of Virtual Private Networks, which allows a user to select a VPN server to connect to that will encrypt all internet traffic from the user’s computer to the public internet. Typically, VPN software will allow you to choose a VPN server from your desired location, and any internet traffic is then routed through that country. Luckily, many adverse countries prohibit the usage of VPNs to curb and control free speech, so this evasion technique hasn’t been as widely successful as once thought.

What if cybercriminals could originate their traffic from within the United States — at will?

That is precisely what cybercriminals have started to do. Rather than originate malicious traffic overseas to attack the U.S. government, businesses, and citizens, which is more likely to be inspected, analyzed, and filtered, cybercriminals based in China and Russia are more frequently funneling their operations through large U.S.-based cloud providers. Amazon Web Services and Microsoft Azure have been targeted to provide services to Chinese front companies, which have been used to attack U.S.-based businesses by hosting fake trading apps, gambling websites, and retail phishing pages. Using U.S.-based infrastructure, cybercriminals can bypass geolocation and IP-based filtering and rent out their infrastructure to other cybercriminals, akin to subletting a spare bedroom in an apartment you are leasing. This practice makes it very difficult to control who is behind the “renting” of Microsoft or Azure’s virtual services. All the activity and internet traffic originating behind a single front company may share the same Public IP address — and administrators will not start blocking cloud providers. As an added bonus, activating and deactivating cloud virtual services is very quick. This means back actors can “stand up” an evil environment, run it for a short period of time and then tear it down before victims start taking action.

What can be done about these new tactics? Just last year, the U.S. Department of Commerce proposed a rule that would require cloud providers to collect data from customers to determine whether each potential customer is a foreign or U.S. citizen, in addition to reporting any transactions that may allow a foreign entity to train AI models that could be used in malicious cyberactivity. How they will implement this requirement and its effectiveness remains to be seen. We know that cybercriminals constantly adjust to the changing environment and will most likely find a way around any new measures that we implement. It is a never-ending challenge.

Michael C. Maschke (mmaschke@senseient.com) is the President and Chief Executive Officer of Sensei Enterprises, Inc. Mr.Maschke is an EnCase Certified Examiner (EnCE), a Certified Computer Examiner (CCE #744), an AccessData Certified Examiner (ACE), a Certified Ethical Hacker (CEH), and a Certified Information Systems Security Professional (CISSP). He is a frequent speaker on IT, cybersecurity, and digital forensics and he has co-authored 14 books published by the American Bar Association.

Sharon D. Nelson (snelson@senseient.com) is the co-founder of and consultant to Sensei Enterprises, Inc. She is a past president of the Virginia State Bar, the Fairfax Bar Association, and the Fairfax Law Foundation. She is a co-author of 18 books published by the ABA.

John W. Simek (jsimek@senseient.com) is the co-founder of and consultant to Sensei Enterprises, Inc. He is a Certified Information Systems Security Professional (CISSP), a Certified Ethical Hacker (CEH), and a nationally known digital forensics expert. He is a co-author of 18 books published by the ABA.

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Citing his “unique constitutional responsibility for the national security of the United States” and the “unfortunate timing of section 2(a) of the Act — one day before I took office as the 47th President of the United States,” he ordered the DOJ not to enforce the law for 75 days “to permit my Administration an opportunity to determine the appropriate course of action with respect to TikTok.”

Publicly Trump is floating a bid for the US government to buy half of the Chinese-owned app.

“TikTok is worthless, worthless if I don’t approve it, it has to close. I learned that from the people that own it. If I don’t do the deal, it’s worthless, worth nothing. If I do the deal, it’s worth maybe a trillion dollars, a trillion,” he babbled as he signed the order. “If I do the deal for the United States, then I think we should get half. In other words wait, I think the US should be entitled to get half of TikTok. And congratulations, TikTok has a good partner, and that would be worth, you know, could be $500 billion or something.”

The president, who claimed that it violated his First Amendment rights to kick him off social media platforms in January of 2021 alleging that they were functionally the US government, would like his own government to literally own a social media platform. And he’s apparently in direct talks with Chinese President Xi Jinping — dictator to dictator — to make it happen.

He scoffs at the very security concerns that a bipartisan Congress and the Biden administration, not to mention the Supreme Court, agreed justified the ban.

“Remember, they make telephones in China. They make all sorts of things in China. Nobody ever complains about that. Here they’re complaining about this, so many different products made in China, nobody ever complained about the only one they complain about is TikTok,” he went on, adding that it was fine, really if China exfiltrates data on American users because it’s mostly young people who use the app, and “If China is going to get information about young kids out of it, to be honest, I think we have bigger problems than that.”

This is a guy who signed an executive order in 2020 banning TikTok because “the spread in the United States of mobile applications developed and owned by companies in the People’s Republic of China (China) continues to threaten the national security, foreign policy, and economy of the United States.”

Perhaps unsurprisingly, the tech companies are unsure of how to proceed. Under the plain language of PAFACA, US entities may not “distribute, maintain, or update (or enable the distribution, maintenance, or updating of)” any application owned by TikTok’s parent company ByteDance, and the attorney general “shall conduct investigations related to potential violations” of the law.

Trump’s EO instructs the AG “to issue a letter to each provider stating that there has been no violation of the statute and that there is no liability for any conduct that occurred during the above-specified period, as well as for any conduct from the effective date of the Act until the issuance of this Executive Order.”

Clearly distributing TikTok violates PAFACA. This order is more than a promise to forego prosecution — it’s a declaration that the law is what Trump says it is, Congress be damned.

But even if companies had confidence that Trump wouldn’t change his mind again and decide that TikTok is a threat to national security, PAFACA has a five-year statute of limitations. Trump’s successor could still enforce the fines of $5,000 per user in violation of the law. Plus, the EO includes boilerplate language specifying that “nothing in this order shall be construed to impair or otherwise affect the authority granted by law to an executive department or agency, or the head thereof” and that it “does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.” So even if Pam Bondi (assuming she gets confirmed) sends out notes pinky-swearing not to prosecute anyone for violating PAFACA, that won’t help if the tech companies find themselves in court.

As it stands, the tech companies appear to be divided. Oracle and Akamai, which provide web support for TikTok, restored access over the weekend before Trump even took office and signed the order. But TikTok remains unavailable in the Apple and Google app stores. Apple informs users that it is “is obligated to follow the laws in the jurisdictions where it operates” and so it cannot offer new downloads, updates for existing users, or in-app purchases.

And so the question is whether the tech companies are going to fall on their swords and risk billions of dollars in fines by opening up shop to the 170 million American users of the app (most of whom are adults, BTW).

Turns out Trump was right in 2020 when he said the app could be used for “blackmail.” Just … not in the way we expected.

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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For starters, Congress is scrambling now that they TikTok ban is upon us and no on swooped in to save them from their bold posturing about the social media platform that they’d hoped would be bought by a company who could spy on citizens for nice, American reasons like selling vitamin supplements or radicalizing them against wokeness:

Congress panics realizing no one is going to buy TikTok before the ban (a problem they created!), with Sen. Schumer saying: " It's clear that more time is needed to find an American buyer and not disrupt the lives and livelihoods of millions of Americans of so many influencers… pic.twitter.com/Gy95xHoD9j

— Ken Klippenstein (@kenklippenstein) January 16, 2025

And it looks like SCOTUS won’t be there to help them save face by declaring the ban an unconstitutional violation of free speech:

SUPREME COURT RULED 9-0 TO UPHOLD TIKTOK BAN LAW

— NewsWire (@NewsWire_US) January 17, 2025

What does learning Mandarin have to do with any of this? In the days leading up to the TikTok ban, thousands of Americans decided to jump ship rather than go down with it. So many people migrated to the Chinese platform Xiaohungshu (Red Note) that it quickly became the most downloaded app. Congress cloaked their speech suppression as a matter of national security and preventing data collection, but if that was the goal they’ve failed miserably. So much data is being collected and exchanged that decades of residual Red Scare propaganda is being undone in real time.

America positions itself as a veritable land of milk and honey. Military budgets are cool and all, but significant aspect of America’s global dominance depends on it being a cultural hegemon — that’s why the Pentagon has had their hand in the Marvel universe. The government’s hard earned cultural hegemony, or soft power, is getting positively shattered as Americans flock to XHS. After less than a week on the app, day to day life is looking a lot less like “Land of the Free” and more like the land of “You live like this?”:

Jesus pic.twitter.com/V6hwgJdFpi

— Organizermemes (@OrganizerMemes) January 16, 2025

it's so dystopian to keep being like "no that wasn't propaganda, we really do that, and it's actually worse than you thought"

— sonya (@sonyablazed_) January 17, 2025

Remember how Trump ran on White Supremacy bringing grocery costs down and proceeded to back pedal on that promise as soon as he won? You know who is doing a phenomenal job of making it look like everyone can afford to eat healthily on a budget in China? Random Xiaohongshu users:

The grocery hauls on xiaohongshu (red note) are less than 10 U.S dollars pic.twitter.com/gNR7jEk95D

— 🌚 (@EvrybdyH8sNadia) January 15, 2025

$6.55 would barely cover the tip if you got lunch at a sit-down spot in Manhattan! It would be one thing if 2025’s cross cultural experience only cut through the propaganda Netizens have been given about America, but the exposure is cutting through the propaganda we give ourselves. Remember the days when Fox could bring up boogeymen like the Chinese “social credit score” and normalization of child labor to scare their listers in to submission? That’s going to be a little harder to do when you hear that that’s fake straight from the horse’s mouth:

A simple comment section in XiaoHongShu / Red Note is undoing billions of dollars of CIA/American propaganda. pic.twitter.com/CN7GYnyh1B

— KHAMCHANH (@KHAMCHANH) January 15, 2025

And the kicker? Americans are the ones with social credit scores — we call it a credit score. Try getting a mortgage without one. And child labor? At least two sitting justices would be totally okay with getting rid of child labor laws. For many, this has been an eye opening “Are we the bad guys?” moment.

Congress’ decision to ban TikTok is cascading so poorly that an act to extend the January 19th deadline out by 270 days to flatten the curve has already been introduced. But the damage has already been done. Even if they lift the ban entirely, some Americans will still platform jump out of spite. Ban whatever international app Americans jump to next and they risk even more discontent at a time where all of the branches have low approval ratings. We’re living in interesting times, things will eventually have to come to a head.

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

For more of the latest in litigation, regulation, deals and financial services trends, sign up for Finance Docket, a partnership between Breaking Media publications Above the Law and Dealbreaker. 

Incredible historical document here: Blinken says Israel’s PR is failing because social media allows people a direct look at what’s happening, shorn of the ability to mediate it, and it lands with emotional resonance. Romney then says yes, that’s why we moved to ban TikTok https://t.co/NeykVeZVRd

— Ryan Grim (@ryangrim) May 5, 2024

Congress came up with an apparently foolproof solution to their problem. Banning a town hall like TikTok may pose some free speech issues but as long as we lean on the “We’re doing this for National Security” angle and thumb the scale at the Supreme Court, there’s not much the American people can do. Right?

Unfortunately, they’ve forgotten two words that go at the very heart of what it means to be an American: “Fuck You.” Spite is a big mover when it comes to explaining what makes us tick — just think about how we vote. Even if the data we share by using apps could pose a legitimate national security risk, people are very okay with China having their data if it means sticking it to the man. Enter Xiaohongshu, or Little Red Book.

xiaohongshu at the top of app downloads today, *and* "tiktok refugees" are already finding a home among the chinese luigi mangione stans. they're joking about sending their data directly to xi jinping in a red envelope. you know the american tech lobby is pissed right now lol pic.twitter.com/eTWMqelcAn

— morgan sung (@morgan_sung) January 13, 2025

The app borrows its name from Chairman Mao’s Little Red Book, an accurate description of a bunch of aphorisms and speeches meant to disseminate Communist Party talking points. Just to be clear, I’m not saying that in the way Fox News does — that’s what it actually was and was meant to do. You’d be hard pressed to think of a more poetic platform for Americans to flock to in the face of government censorship. And as far as free speech goes? Looks like you won’t be censored for talking about climate change worsened wildfires or ongoing genocide:

the xiaohongshu ceo made a welcome video for new american users, and said it’s okay for us to speak about the ca wildfires and gaza

Folks are going to straight up learn Mandarin out of spite and lulz:

For what it is worth, Congress was right about one thing. The Chinese “spies” do seem very interested in American data. It’s just that the data in question are pictures of the user’s cats:

this is the joke everyone is spamming to Americans on Xiaohongshu pic.twitter.com/K9oFajMg6f

— Misha (@SteierMisha) January 13, 2025

And who knows what cascading effects will come from seeing more of what life is like in China. Will the constant threats from Fox News that the woke left is trying to turn America into Communist China hit the same after the public has fled to what is effectively some of the best propaganda possible?

Brother do you know what XHS is? In China it is known broadly as the rich kid Instagram app https://t.co/kqtCatx4Ti

— punished giorgio (@GMomurder) January 14, 2025

Can you imagine the whiplash from reading about congestion prices in New York and America’s poor public transit woes to seeing how advanced commutes can be?

There seems to be a large uptick of N Americans going to Xiaohongshu and getting massive culture shock. Will seeing China's public transport content on Xiaohongshu (examples below) change their minds on what is possible with urban public transit and... pic.twitter.com/jvu5rOg7Fk

— JR Urbane Network (@JRUrbaneNetwork) January 14, 2025

Gotta love perverse incentives. There’s been talk of Elon Musk pulling a King Twit and buying TikTok for something in the $50B range, but TikTok has shut that down as “pure fiction.” What options are left for Congress? Block every international app that promises to be the new TikTok? What are we, China? Damn, we can’t use that expression anymore — our public transit doesn’t even hold a candle to theirs.

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

For more of the latest in litigation, regulation, deals and financial services trends, sign up for Finance Docket, a partnership between Breaking Media publications Above the Law and Dealbreaker. 

Posts with LGBTQ+ hashtags including #lesbian, #bisexual, #gay, #trans, #queer, #nonbinary, #pansexial, #transwomen, #Tgirl, #Tboy, #Tgirlsarebeautiful, #bisexualpride, #lesbianpride, and dozens of others were hidden for any users who had their sensitive content filter turned on. Teenagers have the sensitive content filter turned on by default.

When teen users attempted to search LGBTQ terms they were shown a blank page and a prompt from Meta to review the platform’s “sensitive content” restrictions, which discuss why the app hides “sexually explicit” content.

This is notable because, despite the moral panic around “kids and social media,” even the most ardent critics usually (reluctantly) admit social media has been incredibly useful for LGBTQ youth seeking information and community, often benefiting their health and wellbeing.

I had started to write up this article about that, planning to focus on two points. First, contrary to the popular (but false) belief that content moderation targets traditionally “conservative” speech, it very often targets traditionally “progressive” speech. We see these stories all the time, but the MAGA world either doesn’t know or doesn’t care.

Second, this seemed like a pretty strong reminder of how LGBTQ content will be on the chopping block if KOSA becomes law. Indeed, the very existence of the “sensitive content” restrictions on Meta’s platforms (including Facebook, Instagram, and Threads) was actually the company trying to comply-in-advance with KOSA, forcing all teenagers to have the “sensitive content filter” on by default.

In other words, Meta effectively revealed that, yes, of course the easiest way to abide by KOSA’s restrictions will be to restrict access to any pro-LGBTQ content.

In response to Lorenz’s story, Meta said (as it always does when one of these kinds of stories pops up) that it was “a mistake” and promised to correct it. But, as Lorenz notes, the suppression happened for quite some time, and users who tried to raise the alarm found their own posts hidden.

Some LGBTQ teenagers and content creators attempted to sound the alarm about the issue, but their posts failed to get traction. For years, LGBTQ creators on Instagram have suffered shadow bans and had their content labeled as “non-recommendable.” The restrictions on searches, however, are more recent, coming into effect in the past few months. Meta said it was investigating to find out when the error began.

“A responsible and inclusive company would not build an algorithm that classifies some LGBTQ hashtags as ‘sensitive content,’ hiding helpful and age-appropriate content from young people by default,” a spokesperson for GLAAD said. “Regardless of if this was an unintended error, Meta should… test significant product updates before launch.”

Of course, just as I was initially working on this post on Tuesday, Mark Zuckerberg dropped his whole “hey we’re kissing up to Trump by cutting back on how much we moderate” thing, which certainly changed the way I was looking at this particular story.

While I wrote more about that announcement yesterday, I didn’t cover the specific changes to the policies, as those weren’t made as clear in the initial announcement, which was more about the philosophy behind the policy changes. Kate Knibbs, at Wired, had the scoop on the specific changes within the policies, which makes it clear that Meta’s new view of “non-biased” moderation is basically “hateful people are now welcome.”

In a notable shift, the company now says it allows “allegations of mental illness or abnormality when based on gender or sexual orientation, given political and religious discourse about transgenderism and homosexuality and common non-serious usage of words like ‘weird.’”

In other words, Meta now appears to permit users to accuse transgender or gay people of being mentally ill because of their gender expression and sexual orientation. The company did not respond to requests for clarification on the policy.

Again, Meta is absolutely free to do what it wants with its policies. That’s part of its own free speech rights. And, yesterday, I explained why some of the underlying reasons for the policy changes made sense, but here they’re not just saying “hey, we’re going to be less aggressive in pulling down content,” they’re explicitly signaling “hate has a home here!”

I mean, what the fuck is this?

We do allow allegations of mental illness or abnormality when based on gender or sexual orientation, given political and religious discourse about transgenderism and homosexuality and common non-serious usage of words like “weird.”

That’s in a section saying users are not allowed to post about others’ “mental characteristics” including mental illness, but then they create that new exception to that policy.

If it wasn’t already clear that Meta’s new policies are deliberately bending over backwards to write in exceptions for MAGA culture war favorites, just take a look at the other changes Wired highlighted:

• Removing language prohibiting content targeting people based on the basis of their “protected characteristics,” which include race, ethnicity, and gender identity, when they are combined with “claims that they have or spread the coronavirus.” Without this provision, it may now be within bounds to accuse, for example, Chinese people of bearing responsibility for the Covid-19 pandemic.
• A new addition appears to carve out room for people who want to post about how, for example, women shouldn’t be allowed to serve in the military or men shouldn’t be allowed to teach math because of their gender. Meta now permits content that argues for “gender-based limitations of military, law enforcement, and teaching jobs. We also allow the same content based on sexual orientation, when the content is based on religious beliefs.”
• Another update elaborates on what Meta permits in conversations about social exclusion. It now states that “people sometimes use sex- or gender-exclusive language when discussing access to spaces often limited by sex or gender, such as access to bathrooms, specific schools, specific military, law enforcement, or teaching roles, and health or support groups.” Previously, this carve-out was only available for discussions about keeping health and support groups limited to one gender.

We noted yesterday that the larger change in direction was clearly political. The specifics here make that even clearer. As I noted, there are some legitimate rationales for cleaning up how Meta handles enforcement of its rules, as that has been a total mess. But all of these changes are not in how they handle enforcement. They’re literally all about creating exceptions to their (still in existence) hateful conduct policy to create space for the exact kinds of bigotry and hatred favored by MAGA provocateurs.

This is just confirming that Meta’s about-face is not actually about fixing a broken trust & safety enforcement program writ large, but to just rewrite the rules to allow for more cruelty and hatred towards marginalized groups disfavored by the MAGA world.

It seems like quite a choice. We’ve discussed at great length the whole “Nazi bar” concept, and this is very much a Nazi bar moment for Zuckerberg. This is not calling him a Nazi (as some will inevitably, misleadingly, whine). The whole point of the “Nazi bar” idea is that if the owner of a private space makes it clear that Nazis are welcome, then everyone else will come to realize that it’s a Nazi bar. It doesn’t matter whether or not the owners are Nazis themselves. All that matters is the public perception.

And these specific changes are very much Zuckerberg yelling “Nazis welcome!”

A couple of years ago, when Substack more or less made the same decision, my main complaint was that the company wanted to signal that it was the Nazi bar by dog whistling without coming out and admitting it outright. It’s your private property. You can run it as a Nazi bar if you want to, No one’s stopping you from doing it.

But fucking own it.

Don’t give some bullshit line about “free speech” when it’s not true. Just own what you’re doing: “we’re making a space for bigots to feel comfortable, by changing our rules to expressly cater to them, while expressly harming the marginalized groups they hate.”

That would be the honest admission. But just like Substack, Meta won’t do this, because it’s run by cowards.

Indeed, the most incredible thing in all of this is that these changes show how successful the “working the refs” aspect of the MAGA movement has been over the last few years. It was always designed to get social media companies to create special rules for their own hot button topics, and now they’ve got them. They’re literally getting special treatment by having Meta write rules that say “your bigotry, and just your bigotry, is favored here” while at the very same time suppressing speech around LGBTQ or other progressive issues.

It’s not “freedom of speech” that Zuck is bringing here. It’s “we’re taking one side in the culture war.”

In altering their policies to appease extremists, Meta is directly endangering the well-being and safety of LGBTQ users on their platforms.

As mentioned, he’s free to do that, but no one should be under any illusion that it’s a move having to do with free speech. It’s a political move to say “Nazis welcome” at a moment when it looks like the rhetorical Nazis are about to return to power.

I had mentioned yesterday that this was Zuck trying to follow Musk’s path, which makes some amount of sense. Ever since Elon took over, it’s been pretty clear that Zuck was somewhat jealous of the way in which Musk basically told anyone who didn’t like how he was running ExTwitter to fuck off.

So, it makes sense in two dimensions: (1) trying to be more like Elon in not giving in to public pressure and (2) the spineless appeasement of the new political leaders.

But it doesn’t make much sense on the one other vector that kinda matters: business. Hell, Zuckerberg rushed out Threads as a competitor to ExTwitter because people at Meta recognized how Elon’s haphazard mess of moderation had driven not just users away, but advertisers too.

Zuck may be betting that, because a slim margin of voters put MAGA in charge, advertisers and users will fall in line. But I’m guessing it’s a bet that’s going to bust in a pretty embarrassing manner before too long.

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At least that’s the argument advanced in a new amicus brief from Court Accountability Action, a nonpartisan judicial anti-corruption organization, filed on behalf of Professor Paul Collins Jr., Professor of Legal Studies and Political Science at UMass-Amherst. The organization argues that many of the amici cluttering the docket in the Ninth Circuit’s ongoing antitrust case aren’t so much friends of the court as friends of Google.

And paid for it.

Yes, yes, an amicus brief to complain about amicus briefs. But the extent of Google’s “Amicus Machine,” as the brief dubs it, is really something.

Additional amici have recently entered business relationships with Google or received financial support from Google’s “Founders Fund.” All told, of the eighteen merits-stage amicus briefs filed in support of Google in this appeal, sixteen include amici with documented financial ties to Google.

Wow, 16 out of 18. There’s a googol-to-one chance that’s a coincidence. And that’s not even the most extreme example involving Google. In the recent Section 230 case before the Supreme Court, the brief notes that the nonprofit Tech Transparency Project “found that 44 parties that signed amicus briefs in support of Google’s position in the Supreme Court case [were] funded by or linked to Google.”

I find amicus briefs largely a waste of time. There are exceptions. If the government takes the time to file as a friend of the court, it’s worth noting. And there’s a cottage industry for amicus briefs advancing unhinged alternative history that real litigants are too embarrassed to touch but Alito and Thomas are happy to parrot. But generally speaking, they’re fundraising artifacts created to impress donors and end up in the judge’s trash can.

However, if a party can coordinate with a number of related entities, not just to avoid duplicative arguments, but to divvy up the arguments in the case across multiple briefs, they can circumvent page-limitation rules and craft the litigation equivalent of an Ancient Aliens circle jerk where every crank points at each other’s conclusion and calls it confirmation. It also opens the door to introducing assertions of fact that Google can cite later “that were untested during the adversary process below.” Troublingly, it’s a well-oiled machine at the highest levels:

These repeat players share resources, recruit “elite” counsel, deploy “amicus whisperers” and “wranglers,” and tailor factual and legal narratives for judges and justices. The result is dockets filled with meticulously prepared outside input, often packaged as objective expertise but strategically designed by the litigants to influence outcomes. This networked process ensures that certain well-funded viewpoints, data, and policy arguments are presented in a compelling, rehearsed chorus. Though the federal appellate rules encourage coordination among litigants and their amici “to the extent that it helps to avoid duplicative arguments,” this highly orchestrated influence apparatus goes well beyond avoiding duplication.

And while you can’t necessarily control for ideological fellow travelers, something could be done about folks with financial ties:

Yet the current federal rules governing disclosure of amicus funding allow parties to evade disclosure of their financial connections to amici. Proposed changes to Rule 29 intended to address these deficiencies are pending before the Judicial Conference of the United States.

How do they get around current rules requiring financial disclosure? As the brief explains, a party-in-interest can donate to the general operating fund of the amicus and if the filing is prepared out of those resources rather than a direct payment for the brief, companies take the position that the rules don’t require disclosure.

That said, the rules do require an amicus filing to secure either consent from all parties or leave of the court. In this case, Epic asked these amici to provide the level of disclosure contemplated by the proposed new rules. It was not well-received.

The vast majority of amici supporting Google—sixteen out of eighteen briefs—declined to make these disclosures and instead sought leave of the Court. Several raised objections to Epic’s requested disclosures, including on the grounds that the disclosures would exceed the requirements of Rule 29, that Epic’s conditions were “impossible to satisfy,” and that the amicus “maintains the confidentiality of its membership.”

The brief notes that Google doesn’t even try to hide the fact that it’s a member of the U.S. Chamber of Commerce, but that, when asked to disclose this fact in this case, the Chamber refused saying that it “maintains the confidentiality of its membership.” And while there’s faux nobility in citing a constitutional right to make anonymous donations, these groups don’t have to intervene in their members’ cases. The whole point of an amicus is that they aren’t obligated to write anything at all. They’re the answer to the question no one asked. If they’re so concerned about protecting their members from scrutiny, maybe don’t file an amicus brief.

And maybe these amici aren’t just third-party contractors for Google. But that’s something the court should be able to evaluate with the benefit of complete transparency. Though these groups likely protest too much because there’s a business model to collect “member” fees to circumvent reporting requirements and then hide the direct relationship behind “confidentiality.”

There’s a sad irony in Google’s involvement in this practice. The search engine that took over the internet began its life as the unfortunately named BackRub and the design philosophy that the best way to get to the truth is to look backward at who’s hyping up the page. As opposed to counting how many times the website shoved key terms into its copy, Google decided the value was in scouring the backlinks to figure out where the traffic comes from.

Google understood the value of transparency at one point.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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Not only is U.S. broadband uncompetitive, patchy, expensive, with bad customer service as a result, lax oversight and privacy/security standards has resulted in a steady parade of hacks and leaks, culminating recently in the worst hacking intrusions the U.S. has ever seen. Chinese hackers deeply infiltrated nine major U.S. ISPs to spy on high profile targets, and the government and U.S. telecoms are still trying to assess the damage months later. (Why, it’s almost as if corruption is a national security risk.)

Because the “Salt Typhoon” hackers were very careful about wiping logs it’s been difficult to assess the full scale of the intrusion or whether intruders are still in sensitive systems. Officials believe intruders could still be rooting around the networks of the nine compromised ISPs. They also state the hack was because telecoms “failed to implement rudimentary cybersecurity measures across their IT infrastructure.”

The U.S. reporting on the hack has been…interesting.

The story has seen a fraction of the press attention reserved for the TikTok moral panic. And very few news outlets are willing to draw a direct line between the telecom industry’s relentless “deregulatory” lobbying (read: corruption) and the intrusion, despite U.S. officials making it very clear in statements:

“When I talked with our U.K. colleagues and I asked, ‘do you believe your regulations would have prevented the Salt Typhoon attack?’, their comment to me was, ‘we would have found it faster. We would have contained it faster, [and] it wouldn’t have spread as widely and had the impact and been as undiscovered for as long,’ had those regulations been in place,” [White House Cybersecurity chief] Anne Neuberger said. “That’s a powerful message.”

The FCC is poised to hold meetings next month to address whether it should shore up its cybersecurity oversight of telecoms. But at the helm of those conversations will be new Trump FCC boss Brendan Carr, who has never stood up to major telecoms on any issue of importance, ever. And the looming Trump-court-backed defeat of net neutrality also curtails the FCC’s authority on cybersecurity.

Again, the U.S. Congress has repeatedly proven too corrupt to pass meaningful telecom reform. Regulators are routinely stocked with revolving door careerists too worried about their next career move to stand up to telecoms. And the corrupt U.S. Supreme Court just neutered what’s left of regulatory independence, ceding most reforms to a Congress too corrupt to act.

The Salt Typhoon hack comes after years and years of officials freaking out about the security risks of Chinese-made Huawei telecom hardware. Though when the worst hack in U.S. history finally arrived it was courtesy of lax domestic oversight, domestic deregulation, domestic corruption, domestic laziness, and outdated administrative passwords.

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Some particulars of NY’s Affordable Broadband Act: ISPs with less than 20,000 subscribers are exempt. Only Americans on existing low-income programs could qualify. And the price increases had to be capped at two percent per year, though this was to be renegotiated on an ongoing basis. This was a limited form of rate regulation, and not particularly radical.

But NY State’s Affordable Broadband Act didn’t last long. In 2021 a US District Court judge blocked the law, claiming that the first Trump administration’s 2017 net neutrality repeal banned states from trying to regulate broadband. But courts repeatedly have shot down that claim, stating that the feds can’t abdicate their authority over broadband consumer protection and pre-empt state authority.

So in April of 2024, that judge’s ruling was reversed by the US Court of Appeals for the 2nd Circuit. Last week the Supreme Court refused to hear the case, leaving the 2nd Circuit’s ruling, and the law, intact. It’s not clear when or if New York State will actually start enforcing it.

As Ars Technica notes, this case has particular importance given all the planned looming dismantling of the federal regulatory state during Trump 2.0:

“The appeals court ruling is an important one for the broader question of how states can regulate broadband providers when the Federal Communications Commission isn’t doing so. Trade groups claimed the state law is preempted by former FCC Chairman Ajit Pai’s repeal of net neutrality rules, which ended Title II common-carrier regulation of ISPs.

In a 2-1 opinion, a panel of 2nd Circuit appeals court judges said the Pai-era FCC “order stripped the agency of its authority to regulate the rates charged for broadband Internet, and a federal agency cannot exclude states from regulating in an area where the agency itself lacks regulatory authority.”

As Trump 2.0 regulators like the FCC and FTC give up on consumer protection, it’s going to punt many of these fights to the state level. Given corporations spent so much money gutting Chevron deference in a bid to turn federal regulators into decorative gourds, they’re not going to like it much if consumer protection remains healthy and strong on the state level.

The idea of “rate regulation” is just about the most terrible phrase imaginable if you’re a telecom executive or “free market” Libertarian think tanker type. Limiting price gouging in this fashion is repeatedly brought up as a terrifying bogeyman in telecom policy conversations, though it very rarely manifests. NY’s effort to help people during COVID was a pretty far outlier in terms of policy proposals.

But Big Telecom is clearly worried that if NY’s law is allowed to stand, the years of rate regulation being off the table to address telecom monopolization will come to an end:

“ISPs are worried that their success in blocking federal rules will allow New York and other states to regulate. Telco groups told the Supreme Court that the New York law being upheld while federal rules are struck down “will likely lead to more rate regulation absent the Court’s intervention. Other States are likely to copy New York once the Attorney General begins enforcing the ABA [Affordable Broadband Act] and New York consumers can buy broadband at below-market rates.”

Telecoms want to have their cake (no federal regulation) and eat it too (no state laws filling the obvious void they created). To be clear, there are several cases currently ongoing where telecoms, freshly emboldened by a corrupt Supreme Court, are arguing that the FCC has no federal authority to do much of anything that helps real people (net neutrality, wireless privacy issues, and low-income affordability programs).

So we’re kind of looking at a dog caught the car situation. Telecom giants spent thirty years arguing for the complete dismantling of coherent federal consumer protections. Falsely claiming that gutting federal corporate oversight would bring vast untold benefits to markets and consumers (spoiler: that didn’t happen and will never happen).

They created this “problem” of states passing a discordant number of fractured state-level laws, the resulting complications on pre-emption, and all the legal headaches that will now result. And they’re crying about the problem they created.

Corporate power (telecom or otherwise) is at the ledge of a generational quest to kill coherent federal governance. And they’re not much going to like the new world they built, where states like Washington, California, Oregon, and Maine all craft different and inconsistent laws filling the new federal void on consumer protection, labor rights, environmental law, public safety restrictions, and everything else.

There will be chaos. And in many markets where we’re not talking about net neutrality, but life and death situations. Especially in states where leaders don’t believe in consumer protection, environmental protections, or corporate accountability either.

Again, U.S. broadband is a failed market thanks to regulatory capture. Regional telecom monopolies dominate a region, then lobby to ensure market competition can’t take root, resulting in high prices, slow speeds, spotty access, and terrible customer protection. Absolutely any time anyone proposed ANY FIX WHATSOEVER in the last 30 years, telecoms and their allies had embolisms.

Ideally, you’d want to fix this problem via antitrust reform, stricter merger review, and policies that encourage free market competition. But the “free market!” telecom policy type guys don’t actually want that. They’ve advocated for the total dismantling of federal oversight. Now that they’ve got it, state rights, once such a precious thing in center-right ideology, will be the next target.

Because the goal here for corporate power has never been “free markets.” It’s market domination. They want to be able to behave anti-competitively and price gouge captive customers free from any sort of state or federal intervention. After decades of lobbying Trump 2.0 is poised to deliver that goal on the federal level. State autonomy will be next. People will die. But the legal billable hours will be epic.

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The Second Circuit has upheld the lower court ruling and found that the Internet Archive’s Open Library is not fair use and therefore infringes on the copyright of publishers (we had filed an amicus brief in support of the Archive asking them to remember the fundamental purpose of copyright law and the First Amendment, which the Court ignored).

Even though this outcome was always a strong possibility, the final ruling is just incredibly damaging, especially in that it suggests that all libraries are bad for authors and cause them to no longer want to write. I only wish I were joking. Towards the end of the ruling (as we’ll get to below) it says that while having freely lent out books may help the public in the “short-term” the “long-term” consequences would be that “there would be little motivation to produce new works.”

Which is just all kinds of disconnected from reality. There is not a single person in the world who thinks “well, I would have written this book, except that it would be available for people to borrow for free from a library, so I guess I won’t.” Yet a three-judge panel on the Second Circuit concludes exactly that.

As you’ll recall, the Open Library is no different than a regular library. It obtains books legally (either through purchase or donation) and then lends out one-to-one copies of those books. It’s just that it lends out digital copies of them. To keep it identical to a regular library, it makes sure that only one digital copy can be lent out for every physical copy it holds. Courts have already determined that digitizing physical books is fair use, and the Open Library has been tremendously helpful to all sorts of people.

The only ones truly annoyed by this are the publishers, who have always hated libraries and have long seen the shift to digital as an open excuse to effectively harm libraries. With licensed ebooks, the publishers have jacked up the prices so that (unlike with regular books), the library can’t just buy a single copy from any supplier and lend it out. Rather, publishers have made it prohibitively expensive to get ebook licenses, which come with ridiculous restrictions on how frequently books can be lent and more.

It was clear that the only reason all the big publishers sued the Internet Archive was to put another nail in the coffin of libraries and push to keep this ebook licensing scheme grift going. Now the courts have helped.

This ruling from the Second Circuit pushed back a little bit on one of the most overbroad parts of the district court’s ruling. The judge there seemed to have decided how he was going to rule long before oral arguments even happened, as he published his ruling the very same week as the arguments, and he twisted things to favor the publishers on every single issue, even arguing that because the Internet Archive — a non-profit — asks for donations, that makes everything it does a “commercial activity.” However, this ruling is still really problematic, and arguably in significant conflict with other circuits.

The key part of the case is whether or not the Internet Archive’s scanning and lending of books is fair use. The Second Circuit says that it fails the fair use four factors test. On the question of transformative use, the Internet Archive argued that because it was using technology to make lending of books more convenient and efficient, it was clearly transformative. Unfortunately, the court disagrees:

We conclude that IA’s use of the Works is not transformative. IA creates digital copies of the Works and distributes those copies to its users in full, for free. Its digital copies do not provide criticism, commentary, or information about the originals. Nor do they “add[] something new, with a further purpose or different character, altering the [originals] with new expression, meaning or message.” Campbell, 510 U.S. at 579. Instead, IA’s digital books serve the same exact purpose as the originals: making authors’ works available to read. IA’s Free Digital Library is meant to―and does―substitute for the original Works

The panel is not convinced by the massive change in making physical books digitally lendable:

True, there is some “change” involved in the conversion of print books to digital copies. See Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 n.2 (2d Cir. 1998) (“[A] change in format . . . is not technically a transformation.”). But the degree of change does not “go beyond that required to qualify as derivative.” Warhol II, 598 U.S. at 529. Unlike transformative works, derivative works “ordinarily are those that re-present the protected aspects of the original work, i.e., its expressive content, converted into an altered form.” Google Books, 804 F.3d at 225. To be transformative, a use must do “something more than repackage or republish the original copyrighted work.” Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014); see also TVEyes, 883 F.3d at 177 (“[A] use of copyrighted material that merely repackages or republishes the original is unlikely to be deemed a fair use.” (internal quotation marks omitted)). Changing the medium of a work is a derivative use rather than a transformative one.

But, that’s not what a derivative work is? A derivative work is not scanning a book. Scanning a book is making a copy. A derivative work is something like making a movie out of a book. So, this analysis is just fundamentally wrong in saying that this is a derivative work, and thus the rest of the analysis is kinda wonky based on that error.

Tragically, the Court then undermines the important ruling in the Betamax/VCR case that found “time shifting” (recording stuff off your TV) to be fair use, even as it absolutely was repackaging the same content for the same purpose. The Court says that doesn’t matter because it “predated our use of the word ‘transformative’ as a term of art.” But that doesn’t wipe out the case as a binding precedent, even though the Court here acts as though it does.

Sony was decided long before modern technology made it possible for one to view virtually any content at any time. Put in context, the “time-shifting” permitted by the defendant’s tape recorders in Sony was a unique efficiency not widely available at the time, and certainly not offered by the plaintiff-television producer.

So because content is more widely available, this kind of shifting is no longer fair use? How does that make any sense at all?

Then the Court says (incorrectly — as we’ll explain shortly) that there’s really nothing new or different about what the Open Library does:

Here, by contrast, IA’s Free Digital Library offers few efficiencies beyond those already offered by Publishers’ own eBooks.

The problem, though, is that this isn’t quite true. Getting licensed ebooks out from libraries is a difficult and cumbersome practice and requires each library to have a vast ebook collection that none can possibly afford. As this lawsuit went down, more and more authors came out of the woodwork, explaining how research they had done for their books was only possible because of the Open Library and would have been impossible via a traditional library given the lending restrictions and availability restrictions.

The amazing writer Annalee Newitz just posted about how their recent (amazing) book on psyops was only possible by using the Open Library. Researcher/writer Molly White talks about how useful the Open Library has been to researchers and Wikipedia editors, enabling them to access content that simply isn’t readily available via regular libraries. As Jennie Rose Halperin wrote for us last year, people use the Open Library differently than regular libraries. The average user checks out a book for just 30 minutes, suggesting that it’s not actually a replacement for traditional libraries, but a useful tool for people who are doing research, as Annalee and Molly suggested with their examples.

It’s just wrong for the panel of judges to insist it’s a one-to-one replacement for libraries in terms of how it’s used by borrowers. And it’s not like libraries were complaining about this either. Libraries have been generally supportive of the Open Library (my local library has their own online catalog linked to the Open Library).

A separate way in which the Open Library is unique is that it allows writers and researchers and, well, anyone, to link directly to books, which is incredibly valuable. But the Court is not impressed, even though it barely goes into any details. It just says: “That authors of online articles may embed links to IA’s Free Digital Library does not render the Library a significantly transformative secondary use of the Works.”

From there, the Court explores whether or not the Internet Archive’s use here was commercial. The lower court said it was because, ridiculously, the Internet Archive had donation links on library pages. Thankfully, the panel here sees how problematic that would be for every non-profit:

We likewise reject the proposition that IA’s solicitation of donations renders its use of the Works commercial. IA does not solicit donations specifically in connection with its digital book lending services―nearly every page on IA’s website contains a link to “Donate” to IA. App’x 6091. Thus, as with its partnership with BWB, any link between the funds IA receives from donations and its use of the Works is too attenuated to render the use commercial. Swatch, 756 F.3d at 83. To hold otherwise would greatly restrain the ability of nonprofits to seek donations while making fair use of copyrighted works. See ASTM I, 896 F.3d at 449 (rejecting the argument that because free distribution of copyrighted industry standards enhanced a nonprofit organization’s fundraising appeal, the use was commercial).

It also disagrees that this use is commercial because there’s a referral link for people to go and buy a copy of the book, saying that’s “too attenuated”:

Any link between the funds IA receives from its partnership with BWB and its use of the Works is too attenuated for us to characterize the use as commercial on that basis

Even so, the lack of commerciality isn’t enough to protect the project on the first factor analysis, and it goes to the publishers.

On the second factor, the nature of the works, the Internet Archive tried to argue that because it was sharing knowledge from non-fiction books, this one should be neutral, favoring neither party. However, the Court says it doesn’t matter. Books are books, and so this also favors the publishers.

On the third factor, the amount shared, many people think this should obviously go to the publishers, given that it’s the entire books that are lent. But in the Google Books and HathiTrust cases, the court had said that this factor just means if the use is copying more than is necessary. Thus it’s okay to copy an entire work, if that’s what is necessary for the fair use in question. As such, it seems like this should go to the Open Library. But the Court sees it differently:

IA’s use is therefore unlike the copying that took place in HathiTrust and Google Books. In those cases, the defendants scanned copyrighted books to create, among other things, searchable databases that allowed users to view snippets of text pertaining to their search terms, or to learn on which pages and with what frequency their search terms appeared in any given book. HathiTrust, 755 F.3d at 91; Google Books, 804 F.3d at 208–10. Though the defendants copied the books in their entirety, doing so was necessary to achieve a transformative, secondary purpose―the searchable databases

This seems fundamentally incorrect. The panel is really incorporating its analysis on the first factor and substituting it for any real analysis on the third. Does the third factor regarding the amount copied differ if it is or is not transformative? Then if a court gets the first factor wrong, then by definition they will also get the third factor wrong, shifting at least half of the factors on that one point. That can’t be how the test is supposed to work.

Then, finally, we have the “impact on the market” question. This and the first factor tend to be the only ones that really matter in these analyses. The Archive insisted that there was no evidence of any actual harm to publishers from the Open Library. But, the panel here says “eh, we’re pretty sure it must harm publishers.”

Here, not only is IA’s Free Digital Library likely to serve as a substitute for the originals, the undisputed evidence suggests it is intended to achieve that exact result. IA copies the Works in full and makes those copies available to the public in their entirety. It does not do this to achieve a transformative secondary purpose, but to supplant the originals. IA itself advertises its digital books as a free alternative to Publishers’ print and eBooks. See, e.g., App’x 6099 (“[T]he Open Libraries Project ensures [libraries] will not have to buy the same content over and over, simply because of a change in format.” (internal quotation marks omitted)); id. at 6100 (marketing the Free Digital Library as a way for libraries to “get free ebooks”); id. at 6099 (“You Don’t Have to Buy it Again!”). IA offers effectively the same product as Publishers―full copies of the Works―but at no cost to consumers or libraries. At least in this context, it is difficult to compete with free.

But again, this analysis totally misses the underlying difference in scanned books vs. actual ebooks. If there’s a licensed ebook available, the experience for reading is way, way better than just dealing with a scan. Publishers absolutely can compete with free in this example.

I believe that the Court here is taking the Archive’s comment about “will not have to buy” completely out of context. Their argument is that when publishers change formats this offers a way to continue lending without having to repurchase content that they’ve already got. It’s the equivalent of the “time shifting” argument that was fair use in Sony, where all they’re doing is effectively shifting formats of content they already have legal access to, which should be fair use.

Furthermore, the Internet Archive presented even stronger evidence of the lack of harm:

IA’s expert, Dr. Rasmus Jørgensen, examined OverDrive checkouts of the Works before, during, and after the National Emergency Library (IA’s COVID-era program pursuant to which it lifted its one-to-one owned-to-loaned ratio, allowing each digital book to be checked out by up to 10,000 users at a time without regard to the corresponding number of physical books in storage or in partner libraries’ possession) to assess potential harm to Publishers’ eBook licensing market. If IA’s lending were indeed a substitute for Publishers’ library eBook licenses, he theorized, then the shutdown of the NEL and reinstitution of IA’s lending controls should correspond to an increase in demand for the Works on OverDrive (the commercial service used by many libraries who license eBooks). But Dr. Jørgensen found the opposite: OverDrive checkouts of the Works decreased following the shutdown of the NEL in June 2020. From this, IA concludes that its lending “has no effect on demand for borrowing on OverDrive” and, therefore, there is “no reason to imagine, much less assume, that digital lending affects Publishers’ ebook license revenue at all.”

[….]

IA also submits the expert report of Dr. Imke Reimers, who examined the effect of IA’s lending on Amazon sales rankings for print copies of the Works. Dr. Reimers analyzed whether Amazon sales rankings changed when IA (1) first added the Work to its Free Digital Library, (2) launched the NEL, or (3) removed the Work from its Free Digital Library in response to this lawsuit. She found “no statistically significant evidence” that either inclusion in IA’s library or increased lending through the NEL harmed print sales rankings on Amazon, and that removal of the Works from IA’s Free Digital Library actually correlated with a decrease in sales rankings of the Works on Amazon. App’x 4934. From this and Dr. Jørgensen’s report, IA concludes that its Free Digital Library has no effect on Publishers’ markets for print and eBooks.

But the Court dismisses both of these, saying that there could be many reasons for the results that have nothing to do with the changes to the Archive’s lending practices. And it says that the Amazon comparison is meaningless because it was about physical books, not ebooks.

So after complaining that this evidence is weak, it accepts the publishers’ argument that they were harmed even though they presented no actual evidence to support that claim. So, weak evidence is no good for the Internet Archive and the publishers get away with presenting no evidence at all.

Although they do not provide empirical data of their own, Publishers assert that they (1) have suffered market harm due to lost eBook licensing fees and (2) will suffer market harm in the future if IA’s practices were to become widespread.

[…..]

We are likewise convinced that “unrestricted and widespread conduct of the sort engaged in by [IA] would result in a substantially adverse impact on the potential market for [the Works in Suit].” Campbell, 510 U.S. at 590 (cleaned up). IA’s Free Digital Library serves as a satisfactory substitute for the original Works. Were we to approve IA’s use of the Works, there would be little reason for consumers or libraries to pay Publishers for content they could access for free on IA’s website. See Warhol I, 11 F.4th at 50. Though Publishers have not provided empirical data to support this observation, we routinely rely on such logical inferences where appropriate in assessing the fourth fair use factor.

Again, this is wrong. I always borrow official ebooks from my library when possible, rather than the Open Library, just because the quality is so much better. I only switch over to the Open Library when such ebooks are not available via my library. But the false assumption, which the Second Circuit buys into, is that there zero difference between the files.

And that’s just fundamentally wrong.

It also seems in pretty direct conflict with what the DC Circuit said last year in the case about whether or not Public Resource could publish standards that have been incorporated into law. In that case, on this fourth factor, they found that just because identical digital copies could be downloaded, it did not mean that the market was negatively impacted. That court noted that the publishers in that case could not show any evidence of harm (indeed, in some cases, their sales had increased).

But this panel brushes that off, saying the burden of proof was on the Archive and it failed, so it doesn’t matter that the publishers offered nothing:

To the extent IA faults Publishers’ lack of empirical data, it forgets the burden of proof. Recall the broader context: Publishers have already established a prima facie case of copyright infringement. The only issue in this appeal is whether IA’s Free Digital Library constitutes a fair use of the Works. “Fair use is an affirmative defense; as such, the ultimate burden of proving that the secondary use does not compete in the relevant market is appropriately borne by the party asserting the defense: the secondary user.” Warhol I, 11 F.4th at 49. While the rightsholder may bear some initial burden of identifying relevant markets, “we have never held that the rightsholder bears the burden of showing actual market harm.” Id. Publishers need not present empirical data of their own in connection with IA’s asserted affirmative defense

Then it goes on to say that the nature of the works is different in that case, but the “nature of the works” is a different factor. So, again, this panel seems to want to keep mixing up the factors.

The final part of the ruling really is a tragic insult to the public. The Internet Archive made a final argument that the library should be allowed to continue given its substantial public benefit. But the Court, ridiculously, claims that the public gets a greater benefit from the library being shut down, and mocks the idea that expanding access to the public is all that important.

Indeed, this next section is going to do tremendous damage to fights for an open internet and against copyright maximalism and how it locks up knowledge. This whole section is basically writing the public benefit out of copyright law, even though benefiting the public is the entire purpose of copyright law. And, on top of it, it argues that libraries disincentivize authors by offering books for free. Which is crazy.

We conclude that both Publishers and the public will benefit if IA’s use is denied.

To be sure, expanding access to knowledge would, in a general sense, benefit the public. But “[a]ny copyright infringer may claim to benefit the public by increasing public access to the copyrighted work.” Harper & Row, 471 U.S. at 569. That does not alone render the infringement lawful. Indeed, the Copyright Act and its empowering constitutional authority reflect a considered judgment that “the Progress of Science and useful Arts” is best promoted by laws that protect authors’ original works and permit authors to set the terms of engagement, at least for a limited time. See Sony, 464 U.S. at 429. Doing so benefits the public “by providing rewards for authorship.” Google Books, 804 F.3d at 212. This monopolistic power is a feature, not a bug, of the Copyright Act.

Within the framework of the Copyright Act, IA’s argument regarding the public interest is shortsighted. True, libraries and consumers may reap some short-term benefits from access to free digital books, but what are the long-term consequences? If authors and creators knew that their original works could be copied and disseminated for free, there would be little motivation to produce new works. And a dearth of creative activity would undoubtedly negatively impact the public. It is this reality that the Copyright Act seeks to avoid.

That bolded line in that paragraph there is exactly what the publishers wanted: a knife in the back of libraries. It’s literally saying “sure, libraries may benefit the public, but if they continue who will continue to write?”

This is completely disconnected from reality. What authors choose not to write because their book is available to be freely borrowed from a library? None. And yet, this is now precedent in the Second Circuit.

It’s a fantasyland claim.

Again, the Open Library works in a manner no different from any regular library from the point of view of a publisher or author. A book is purchased or donated (the publisher and the author therefore get their money) and then it can be lent out. This is literally no different than how an author is compensated from a regular library.

If the bolded comments above are true for the Open Library, they must also be true for a regular library. Yet, I guarantee that not a single author chooses not to write because their books are available in a library to be lent out for free.

This is the part that really destroys me in this ruling. It takes a completely nonsensical claim and insists that it’s true. It’s fantasyland thinking and it effectively puts the knife in the back of libraries.

I imagine the Archive will seek cert at the Supreme Court, but who knows what will happen there. The Supreme Court hasn’t been great on fair use lately. The better answer is that Congress should fix this and make it clear that copyright law blesses this kind of open digital lending, though the copyright industries would throw a shitfit if anyone even dared propose such a bill.

This ruling is a huge loss for public access to knowledge and for libraries.

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Olga V. Mack: Richard, with your deep expertise in AI and legal technology, what do you think are the most critical remedies that might be imposed on Google following this ruling?

Richard Finkelman: The ruling against Google has opened up a range of potential remedies, each aimed at curbing Google’s dominance and restoring competitive balance in the market. The remedies could be structural, such as breaking up Google into smaller entities, or behavioral, like prohibiting exclusive agreements that make Google the default search engine on devices. However, the rise of AI-powered search engines like Perplexity and OpenAI’s plans to launch a search engine introduces a new dynamic that could influence these remedies.

OM: How do you see AI-powered search engines like Perplexity impacting the enforcement of these remedies?

RF: AI-powered search engines have the potential to disrupt the search market significantly, offering alternatives that were previously unimaginable. These engines leverage advanced natural language processing and machine learning to provide more personalized and intuitive search experiences. This innovation could naturally erode Google’s market share, lessening the need for extreme remedies like a breakup. Instead, we might see regulators focus on promoting user choice, perhaps through the implementation of choice screens that allow users to select their preferred search engine, including these AI-powered options. Such measures could foster competition without the complexities of dismantling Google.

OM: You’ve mentioned that AI search engines could reduce the need for drastic regulatory interventions. But aren’t there also challenges associated with these new technologies, particularly in terms of bias and ethical use?

RF: Absolutely. While AI search engines offer exciting possibilities, they also come with their own set of challenges. One of the most pressing issues is bias. AI models are only as good as the data they’re trained on, and if that data is biased, the search results will be too. Google’s Gemini project, which has faced criticism for biased image generation, is one example of how hard it is to correct potential bias. Ensuring that AI search engines are fair, transparent, and accountable is crucial. Moreover, as these technologies become more pervasive, we need to be vigilant about privacy concerns and the potential for misuse, such as the spread of misinformation.

OM: Any final thoughts on potential remedies from the Google decision?

RF: I expect that the remedies in this case will include the sharing of underlying technologies similar to the remedies that came out of the U.S. v. Microsoft case in 2001. In that case, the court found that Microsoft had used its monopoly power in personal computer operating systems to restrict competition. While the initial ruling called for Microsoft to be split, it was overturned on appeal. Instead, behavioral remedies were implemented, such as prohibiting Microsoft from entering into exclusionary agreements and requiring it to share certain technologies.

In this case the sharing of underlying technologies may include the AI components of Google’s AI Overview platform. Google launched AI Overview in May. It is a modified search experience within Google which leverages generative AI to dynamically respond to users’ queries. The court may order that pieces of this technology be shared with other search engine companies.

Olga V. Mack is a Fellow at CodeX, The Stanford Center for Legal Informatics, and a Generative AI Editor at law.MIT. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat, Fundamentals of Smart Contract Security, and Blockchain Value: Transforming Business Models, Society, and Communities. She is working on three books: Visual IQ for Lawyers (ABA 2024), The Rise of Product Lawyers: An Analytical Framework to Systematically Advise Your Clients Throughout the Product Lifecycle (Globe Law and Business 2024), and Legal Operations in the Age of AI and Data (Globe Law and Business 2024). You can follow Olga on LinkedIn and Twitter @olgavmack.

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Last Monday, the judge in Google’s big antitrust trial (the first of a few) found that the company had, in fact, violated antitrust laws. The ruling is massive (286 pages), so it took a few days for me to get through it. You can read straightforward coverage of it elsewhere, so I wanted to focus some of my thoughts on what this actually means.

And my general conclusion is… not very much? At best, it’s marginally helpful to Microsoft (one of just three companies that is larger than Google) and marginally harmful to Mozilla. But… not all that helpful at all to people who want there to be more competition and better search.

From the beginning, I thought this was a particularly weak antitrust case (apparently I was wrong!). I also thought that one of the other antitrust cases the company is facing (about advertising tech) was a hell of a lot stronger. So I’m a bit surprised by the conclusion here, but still left perplexed by what actual benefit this outcome has (should it stand).

And, of course, none of it really matters at all right now, because Google will appeal, and the case will go on for another five or so years before anything is decided. And, at that point, it’s possible that we’ll be living in an entirely different world, perhaps one where AI-driven search engines make Google’s position less dominant anyway.

However, let’s take a step back first, and start with a few key points before delving into this ruling in particular.

1. Having more competition is good and having less competition is bad.
2. Google is a tremendously powerful company, known (at times) to abuse that power in unfortunate ways. It’s entirely reasonable (and probably sensible) not to trust the company. There’s a reason why we removed all Google tracking and ads from Techdirt years ago.
3. Things get complex when most people recognize that Google actually has the best search engine. That’s not to say it’s a good search engine. Many people believe it’s gotten a lot worse of late. But if users tend to think it’s the best and get upset at other companies if they present non-Google search results, what do you do? That was the question we asked last fall, and this ruling has not yet answered it.

All of that means that the situation here is uncomfortable. Judge Amit Mehta says that Google has a monopoly in search. He says the agreements it has made with Apple and Mozilla are a form of illegal tying. In these agreements, Google pays both of those companies lots of money to offer up Google search as a default in browsers and operating systems.

But, it’s a weird sort of monopoly in which the main evidence against the monopolist is that it pays billions of dollars to other companies. But, of course, the reasoning in the ruling is that Google pays that to effectively keep the market uncompetitive.

The judge finds that Google’s market share and the barrier to entry for new search engines is strong evidence that it has market power in search. The court found that Google did not have a monopoly in the search ads market, except in search text ads. It appears that Amazon’s product page ads somehow saved Google from also having a monopoly in regular search ads.

After establishing that Google has a monopoly in search and in text ads, it then explores whether or not its behavior is anti-competitive. Again, the Judge flat out says that everyone basically agrees that Google is the better product:

In a sense, Google is not wrong. It has long been the best search engine, particularly on mobile devices… Nor has Google sat still; it has continued to innovate in search…. Google’s partners value its quality, and they continue to select Google as the default because its search engine provides the best bet for monetizing queries…. Apple and Mozilla occasionally assess Google’s search quality relative to its rivals and find Google’s to be superior. … And Google’s rivals have tried to oust it as the default GSE. Microsoft, most notably, has pitched Apple on making Bing the default multiple times, and DDG made a bid to be the default for private browsing mode searches on Safari. …These firms have not succeeded in part due to their inferior quality. …. It is also true that Google foresaw that the future of search was on mobile. Microsoft acknowledges that it was slow to recognize the importance of developing a search product for mobile, and it has been trying to catch up—unsuccessfully—ever since.

The judge even quotes Apple’s Eddy Cue admitting that it wouldn’t be worth it for the degraded user experience, even if Microsoft paid them much more money:

The market reality is that Google is the only real choice as the default GSE. Apple’s Senior Vice President of Services, Eddy Cue, put it succinctly when, in a moment of (perhaps inadvertent) candor, he said: “[T]here’s no price that Microsoft could ever offer [Apple] to” preload Bing. Tr. at 2519:10-11 (Cue) (emphasis added). “No price.” Mozilla stated something similar in a letter to the Department of Justice prior to the filing of this lawsuit. It wrote that switching the Firefox default to a rival search engine “would be a losing proposition” because no competitor could monetize search as effectively as Google.

This again highlights the issue described above. But to the court, it is an argument that there is no real competition.

If “no price” could entice a partner to switch, or if doing so is viewed as a “losing proposition,” Google does not face true market competition in search

But also, that raises the issue of the other oddity mentioned above. If there’s no one else who’s better, then why is Google paying so much to Apple and Mozilla? Microsoft can’t outbid them, so why not pay less?

And here, the judge speculates that the payments disincentivize others from entering the space at all, based in large part on the founder of the defunct search engine Neeva.

That was the key takeaway from the testimony of Neeva’s founder and former Google Senior Vice President of Ads and Commerce, Dr. Ramaswamy. The court found him to be a particularly compelling witness. He put it best. When the court asked why Google pays billions in revenue share when it already has the best search engine, he answered that the payments “provide an incredibly strong incentive for the ecosystem to not do anything”; they “effectively make the ecosystem exceptionally resist[ant] to change”; and their “net effect . . . [is to] basically freeze the ecosystem in place[.]” Tr. at 3796:8–3798:22 (Ramaswamy). No one would ever describe a competitive marketplace in those terms. When the distribution agreements have created an ecosystem that has a “strong incentive” to do “nothing,” is “resist[ant] to change,” and is “basically [frozen] in place,” there is no genuine “competition for the contract” in search. It is illusory.

But all of that seems based on… pure hypotheticals. After all Neeva did enter the market. And failed. But others continue to try (like Kagi). Could Apple have made its own search engine? Maybe? Would it really have done so? Dunno. Would it have been any good? Also don’t know. Microsoft has spent billions on it and hasn’t done all that well. It seems more likely that the attempts by companies to use AI to reinvigorate search will have a better chance, and that’s unrelated to the issue of Google’s agreements.

And so, again, we get to remedies. The court can’t force someone else to create a good search engine that can compete with Google. Nor can it force Apple and Mozilla to default to other search engines when neither seem interested in doing so. About the only obvious move is to present a user choice screen of what search engine they want to use, which many users will see more as a nuisance than anything else. And… Europe already did this, and basically everyone still chose to use Google.

Some people point to reports about similar choice screens for browsers “working” in the EU, but that really depends on how you define “working.” Some reports highlighted how smaller browsers saw a large bump in users, but it still appears negligible relative to the market leaders.

So all of this leaves everyone in an uncomfortable and not very helpful position. Yes, it would be nice if there were other competitors in the market. But what about this ruling will actually make that happen? At best, this seems to give Google an excuse to pay less to Apple and Mozilla, which helps Google out and harms Mozilla, one of the few companies that is actually competing in the browser space.

That doesn’t seem like a good or healthy result.

Some are arguing that this calls for a “breakup” of Google, but it’s also difficult to see. What in breaking up Google enables more successful search engines to hit the market? Again, that kind of remedy seems more reasonable (and more likely to have an impact) in the other case about adtech.

And, again, by the time this case is actually over, years down the road, the entire market may have already shifted. This leaves things in an uncomfortable position. Yes, Google is dominant in the market. And, no, that’s not great. But how do you get someone else to build a really good search engine out of this remains unclear.

So, in the end, I still find this case frustrating. What do you do when the status quo seems way less than ideal, but the remedies presented don’t seem likely to help, and could actually do damage to a competitive player like Mozilla?

It’s also made more problematic by having different antitrust cases targeting different parts of Google’s business. If you could take a more holistic view of the company and its impact on various markets, it seems like the issues, the impact, and the potential remedies would take a more comprehensive view. But, instead, this is what we’re left with.

The DOJ won a historic antitrust case, which might not have any significant impact at all.

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The Wyden/Cox (Perrault) argument is summed up in this quote from Cox:

“To be entitled to immunity, a provider of an interactive computer service must not have contributed to the creation or development of the content at issue,” he told me. “So when ChatGPT creates content that is later challenged as illegal, Section 230 will not be a defense.”

At a first pass, that may sound compelling. But, as Miers noted in her piece, the details get a lot trickier once you start looking at them. As she points out, it’s already well established that 230 protects algorithmic curation and promotion (this was sorta, partly, at issue in the Gonzalez case, though by the time the Supreme Court heard the case, it was mostly dropped, in part because the lawyers backing Gonzalez realized that their initial argument probably would make search engines illegal).

Further, Miers notes, that 230 cases have already been found to protect algorithmically generated snippets that summarize content elsewhere, even though those are “created” by Google, based on (1) the search input “prompt” from the user, and (2) the giant database of content that Google has scanned.

And, that’s where the issue really gets tricky, and where those insisting that generative AI companies are clearly outside the scope of 230 feel like they haven’t quite thought through all of this: where is the line that you can draw between these two things? At what point do we go from one tool, Google, that scraped a bunch of content and creates a summary in response to input, to another tool, AI, that scrapes a bunch of content and creates “whatever” in response to input?

Well, the two Senators who hate the internet more than anyone else, the bipartisan “destroy the internet, and who cares what damage it does” buddies: Senator Richard Blumenthal and insurrectionist supporting Senator Josh Hawley have teamed up to introduce a bill that explicitly says AI companies get no 230 protection. Leaving aside the question of why any Democrat would be willing to team up with Hawley on literally anything at this moment, this bill is… well… weird.

First, just the fact that they had to write this bill suggests (perhaps surprisingly?) that Hawley and Blumenthal agree with Miers more than they agree with Wyden, Cox, or Perrault. If 230 didn’t apply to AI companies, why would they need to write this bill?

But, if you look at the text of the bill, you quickly realize that Hawley and Blumenthal (this part is not surprising) have no clue how to draft a bill that wouldn’t suck in a ton of other services, and strip them of 230 protections (perhaps that’s their real goal, as both have tried to destroy Section 230 going back many years).

The definition of “Generative Artificial Intelligence” is, well, a problem:

GENERATIVE ARTIFICIAL INTELLIGENCE.—The term ‘generative artificial intelligence’ means an artificial intelligence system that is capable of generating novel text, video, images, audio, and other media based on prompts or other forms of data provided by a person.’

First off, AI is quickly getting built into basically everything these days, so this definition is going to capture much of the internet within a few years. But, going back to the search example discussed above. Where the courts had said that 230 protected Google’s algorithmically generated summaries.

With this bill in place, that’s likely no longer true.

Or… as social media tools build in AI (which is absolutely coming) to help you craft better content, do all of those services then lose 230 protection? Just for helping users create better content?

And, of course, all of this confuses the point of Section 230, which, as we keep explaining, is just a procedural fast pass to get frivolous cases tossed out.

Just to make this point clear, let’s look at what happens should this bill become law. Say someone does a Google search on something, and finds that the automatically generated summary is written in a way that they feel is defamatory, even though it’s just a computerized attempt to summarize what others have written, in response to a prompt. The person sues Google, which is no longer protected by 230.

With Section 230, Google would be able to get the case kicked out with minimal hassle, as they’d file a relatively straightforward motion to dismiss pointing to 230 and get the case dismissed. Without that, they can still argue that the case is bad because, as an algorithm, Google could not have had the requisite knowledge to say anything defamatory. But, this is a more complicated (and more expensive) legal argument to make, and one that might not get tossed out on a motion to dismiss, but which would have to go through discovery, and to the more involved summary judgment stage, if not go all the way to trial.

In the end, it’s likely that Google still wins the case, because it had no knowledge at all as to whether the content was false, but now the process is expensive and wasteful. And, maybe it doesn’t matter for Google, which has buildings full of lawyers.

But, it does matter for basically every AI startup out there. Or any other company making use of AI to make their products better and more useful. If those products spew out some nonsense, even if no one believes it, must we have to fight a court battle over it?

Think back to the case we just recently spoke about regarding OpenAI being sued for defamation. Yes, ChatGPT appeared to make up some nonsense, but there remains no indication that anyone believed the nonsense. Only the one reporter saw it, and seemed to recognize it was fake. If he had then published the content, perhaps he would be liable for spreading something he knew was fake. But if it’s just ChatGPT writing it in response to that guy’s prompts, where is the harm?

In other words, even in the world of generative AI, there are still humans in the loop, and thus there can still be liability placed on the party responsible for (1) creating, via their prompts, and (2) spreading (if they publish it more widely) the violative content.

It still makes sense, then, for 230 to protect the AI tools.

Without that, what would AI developers do? How do you train an AI tool to never get anything wrong in producing content? And, even if you had some way to do that, wouldn’t that ruin many uses of AI? Lots of people use AI to deliberately generate fiction. I keep hearing about writers using it as a brainstorming tool. But if 230 doesn’t protect AI, then it would be way too risky for any AI tool to even offer to create “fiction.”

Yes, generative AI feels new and scary. But again, this all feels like an overreaction. The legal system today, including Section 230, seems pretty well equipped to handle specific scenarios that people seem most concerned about.

Hawley, Blumenthal Team Up To Push Nonsensical AI/230 Bill

More Law-Related Stories From Techdirt:
The Patent Troll Lobby Set Up An AI-Powered Comment Creator To Support Its Bad Patent Policy
DOJ Asks Judge To Block Backpage From Talking About Legal Ads, First Amendment, Section 230
Music Publishers File (Somewhat Weak) Copyright Lawsuit Against Twitter

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After establishing its willingness to spend money to build a patent portfolio as quickly as a random Chinese megalopolis is able to throw up apartment buildings to house millions of people, Facebook struck gold again when it came to patents — this time with the dual whammy to software patent owners of Alice and IPRs. With respect to the latter, Facebook was an early adopter of an IPR-first defense strategy, a practice which it continues to employ until today. Considering its success with that approach, Meta can’t be blamed for being a frequent consumer of the PTAB’s services. And with respect to Alice, there is no doubt that the gutting of Internet- and software-directed patents engendered by that decision and its subsequent application by the courts has been a boon for Facebook on the patent infringement defense front. In fact, it is hard to think of a company that has benefited more from Alice, considering Facebook’s revenue growth over time and attractiveness as a target for patent owners. Maybe Google, but they also face a lot more cases than Facebook does on the patent side, so perhaps Alice has led to more of a deterrent effect in Facebook’s favor.

Even though Facebook has been a prime beneficiary of the age of IPR and Alice, the company’s huge revenue base and efforts to expand into more than just a social network continue to attract enterprising patent owners hoping for a big score. For a long time, that result has evaded patent owners brave enough to challenge Facebook in court, such as when the company defeated Surfbook before a Virginia jury in 2014. Things changed though in 2022 for Facebook on the patent defense front, when an Austin jury awarded $175 million in damages to a Dallas-based company named Voxer, known for its app that turns a smartphone into a walkie-talkie device. In its verdict, the jury found that Facebook and Instagram Live functionality infringed on two Voxer patents, while awarding the $175 million as a running royalty. Facebook filed post-trial motions looking to set aside the verdict. That motion was decided in a written opinion released by Judge Yeakel of the Western District of Texas last week.

In his opinion, Yeakel made short work of Facebook’s attempt to disturb the jury’s infringement findings, particularly the jury’s decision to credit the testimony of Voxer’s technical expert. Likewise, Facebook’s attempt to overturn the finding that one of the asserted patents was valid over the prior art was also rejected based on the testimony of Voxer’s technical expert. (At a minimum, this case should be a reminder just how important expert testimony is in patent cases.) On damages, Facebook took issue with the jury’s finding that Voxer was entitled to a running royalty, as opposed to a lump sum, as well as the apportionment analysis conducted by Voxer’s damages expert. But those challenges were swatted away by the court, in addition to a challenge to the damages verdict based on the alleged use of a wrong date for the hypothetical negotiation — all because those issues were explored at trial via cross-examination and Facebook’s rebuttal case on damages. At bottom, Yeakel made plain that the findings of a WDTX jury after a full and fair trial are not taken lightly in his courtroom.

Facebook also tried to persuade Yeakel to at least order a new trial on damages, based in large part on a third-party valuation obtained by Voxer that put the value of Voxer’s patents to Facebook at a maximum of around $23 million. Here again, the court disagreed that this evidence was enough to disturb the jury’s damages findings, considering that the jury was free to weigh all the evidence presented to it. Facebook’s hopes for remittitur or a new damages trial were for naught.

Interestingly, Facebook also raised an Alice challenge to one of the patents under Rule 52(c), a procedural posture much less familiar than the typical 12(c) Alice motion filed early in a case. Alice’s face always has the ability to turn a patent owner’s face to stone, but — in a blow to Facebook’s hopes of styling itself a patent defense Medusa — Judge Yeakel determined that with respect to Voxer’s patent, there was no ineligibility as the claims were not directed to an abstract idea, but rather to “improvements to communications systems.”

Ultimately, Facebook’s requests for a new trial or JNOV were not enough to get Yeakel to waver off his position, aptly summed up in his opening sentence of the conclusion paragraph in his opinion: “Facebook had a full and fair opportunity to defend itself.” Put differently, having gone through trial in a WDTX courtroom, Facebook now must hope the Federal Circuit will disagree with Yeakel and the jury on appeal. Or else it must be prepared to finally face the music, in Austin of all places.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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U.S. Justice Department lawyers say that Alphabet Inc’s Google destroyed internal corporate communications and have asked a federal judge to sanction the company as part of the government’s antitrust case over its search business.

The DOJ asserted in a court filing unsealed in a Washington, D.C., federal court on Thursday that Google failed to timely suspend a policy allowing the automatic, permanent deletion of employees’ chat logs.

It is hard to prove your case when the evidence just conveniently goes missing!

The government said Google “falsely” told the U.S. in 2019 that it had suspended “auto-deletion” and was preserving chat communications as it was required to do under a federal court rule governing electronically stored information.

If this were a mom and pop shop that threw out a tax form, maybe, but Google should have known what they were doing here. They’re the one everyone else goes to when they need to figure out what to do for crying out loud. Either that or YouTube… which is also Google. Point stands.

“Google’s daily destruction of written records prejudiced the United States by depriving it of a rich source of candid discussions between Google’s executives, including likely trial witnesses,” DOJ attorney Kenneth Dintzer wrote in the filing.

The dream would be for Google to magic up an old server that still has all the logs the DOJ needs. In lieu of there being an OSGoogle out there, the DOJ is requesting the court to hold a hearing and consider sanctioning Google. In the meantime, I’d recommend that the DOJ keep up their diligent search for the logs — maybe go past page 5 of the Google results? That far back is basically the dark web.

U.S. Justice Dept Accuses Google Of Evidence Destruction In Antitrust Case [Reuters]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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WeWork knows what we're talking about:

SoftBank, the biggest outside shareholder in WeWork, is urging the lossmaking property group to shelve its hotly anticipated initial public offering after it received a cool reception from investors, according to people briefed on the discussions.

If Masa Son is telling WeWork that it needs to engage in less-risky financial behavior, then we might be in a situation where Adam Neumann needs to calm down...

SoftBank itself is trying to raise $108bn for a second Vision Fund to invest in technology start-ups. The Japanese group could face challenges raising that sum if We Company were to list at a steep discount to its last funding round, the people said.

WeWork is set to receive $1.5bn from SoftBank next year as part of an agreement struck at the start of this year. The company listed $2.5bn of cash and cash equivalents on its balance sheet as of June 30, according to filings with US securities regulators.

But like you at 3am trying to mumble out an order for another round of shots as your eyes roll in your head, Neumann is apparently beyond the capacity to hear advice:

The WeWork initial public offering is full speed ahead, sources familiar with the matter tell CNBC’s David Faber, despite a number of a setbacks including a dramatic cut in its valuation and its biggest outside investor urging the controversial real estate company to shelve the offering.

The IPO roadshow is set to kick off as soon as Monday, the sources said.

At moments like this, it's useful to look around and take a moment to ask yourself "Am I the Topher?" Or in this case "Are WeTopher?"

SoftBank urges WeWork to shelve IPO [FT]

The WeWork IPO is full speed ahead with roadshow to kick off as soon as Monday, sources say [CNBC]

On Tuesday, a mysterious landlord known only as “120 East 16th Street Co. LLC” sued WeWork, alleging that the company used a shell entity to circumvent its liabilities. In a complaint filed with the New York State Supreme Court, the landlord claimed that this restructuring violated the terms of its October 2016 lease.

This is an action for declaratory judgment seeking a determination that… Tenant has committed an incurable default under its lease with the Plaintiff. As a result, the Plaintiff is entitled to terminate the lease at its option and seek relief against WWCI, or its successor, as the corporate guarantor, based upon an acceleration of rents.

Apparently, WeWork transferred liability for the lease from its parent company, WeWork Incorporated Inc., to the newly created WeWork Companies LLC.

...on or about June 23, 2019, the Landlord received a belated notice without any detail to the effect that [WeWork Incorporated Inc.] [(“]WWCI[”)] had already undergone an undefined "holding company reorganization" under which a new entity known as WeWork Companies LLC ("WWC LLC") became the corporate holding company [of the lease].

The landlord further alleged that this move is in violation of the “Net Worth Clause” contained in the lease, which requires that, in the event that WeWork were to replace WWCI with another company as guarantor (which, to be clear, is exactly what WeWork did), that new company would have to have a net worth of at least $150 million.

But in its complaint, 120 East 16th Street Co. LLC expressed its skepticism that this new shell company actually has the cash:

Recent financial reports in the media, however, cast great doubt on the financial viability of WWC LLC…. Defendants are effectively foisting on the Landlord a guarantor not of its choosing, without the required prior notice and prior proof that the substitute guarantor has a net worth of at least $150 million.

These “recent financial reports in the media” might have included Triton Research’s searing analysis of WeWork’s financial alchemy, or the FT’s report this Sunday that WeWork’s extensive use of shell companies will make it harder for its landlords to enforce obligations should those shell companies go bankrupt. 

While using an LLC to sign a lease is common in commercial real estate, the amount of rental obligations WeWork has left unguaranteed is not ($41.2 billion out of a total of $47.2 billion of future lease liabilities, or roughly 83%, according to the IPO prospectus it filed last week).

Are the folks at 120 East 16th Street Co. LLC hedging against a potential WeWork bankruptcy? Perhaps they figured it’s better to sue WeWork now, rather than wait to sue WeWork’s bondholders for money not already flushed down WeWork’s thousands of toilets. Either way, it seems they want to avoid a scenario in which WeWork’s investors remain whole while its landlords join the alligators in the sewers of the world’s high-cost business centers.

Follow Jack Farley on Twitter @JackFarley96.

Well, it turns out that shareholders are correct to worry that Uber is still being run like a coked-up tween with a no-limit credit card. Per Crunchbase News:

Last week, Uber’s chief financial officer, Nelson Chai, sent an all-company email announcing a minor policy change. Uber marks the anniversary of employees’ work at the company, which is internally referred to an “Uberversary.”

But now, instead of marking another year of service with helium balloons at their desk, the on-demand transportation giant will start giving its employees stickers to mark the occasion. Chai said in his email that the switch could save the company more than $200,000 at its offices in San Francisco alone.

“It’s not only a great way to find dollars we can invest back into the business, it’s also more environmentally friendly,” Chai’s message said. Crunchbase News was shown the email by a recipient, who did so on condition of anonymity. Uber did not respond to requests for comment prior to publication.

Well, congrats on the savings there, Uber. But can we offer a tip?

This email is cause for terminating Nelson Chai.

Uber is not a startup anymore. You're a $57 billion public company with shareholders who are freaking out about your spending, and your CFO is writing emails to staff tacitly admitting that you have been spending $200k on actual balloons for Uber's birthday party every year? What are you DOOOOOOOING?

 This is not smart management, it's an admission of previous mismanagement, and now it's in an email. Just cancel the balloon order, buy the stickers and shut the fuck up. Now the email is on Crunchbase News...and that's bad, probably[?].

Uber is ten years old, it's not A ten-year-old. 

This is not a story about getting better, it's a story about being overly proud of learning to stop fucking up.

Deflated, Uber May Swap Anniversary Balloons For Stickers To Save $200K Per Year [Crunchbase News]

Well, it turns out that we have at least one more fun twist in Marissa Mayer's jaw-dropping legacy at Yahoo, and it's also a super-fn callback.

Per Axios:

Verizon is set to sell the social network Tumblr to Automattic Inc, the owner of online publishing tool Wordpress. A source familiar with the deal puts the price-tag "well below" $20 million.

Hmm, paid $1.1 billion, sold for "Well below" $20 million...that's [types away on calculator] a lot less.

And there's also this:

Verizon's desire to sell Tumblr had been previously known, but as of May, Pornhub had been the only bidder to show public interest.

Taking a 98% writedown on the original acquisition price of an app that was basically Instagram but not as good just so it doesn't revert back to being a widely-beloved platform for niche porn? Marissa Mayer really was the Keyser Soze of American business.

Verizon agrees to sell Tumblr to owner of Wordpress [Axios]

"Domino's Named 2018 Tech Accelerator of the Year." 

These are a few of the headlines about Domino's. Yes, the pizza company. They even got the blessing of Jim "Bear Stearns is fine"Cramer, who said "Domino's is a fantastic technology company." 

Despite being a pizza company at heart, you can't argue with the results of pivoting to a "technology company." Shares of Domino's are up nearly 300% over the last 5 years.
But the company is now facing a problem that may test just how much of a “technology company” it actually is. You'd think it wouldn't be an issue for Guillermo Robles to order a pizza. However, it is, as he is blind and Domino's doesn't offer an accessible website or app to blind people. 

Robles filed a lawsuit against Domino’s alleging that the Americans with Disabilities Act, a 1990 law that requires businesses to make accommodations for individuals with disabilities, applied to the websites and apps of businesses with physical locations. After a federal appeals court agreed, the case may now end up in the Supreme Court after Domino’s petitioned them to hear his case. Domino’s argues there aren’t yet clear rules governing how to make their web platforms ADA compliant. 

The potential implications of this case can’t be understated; it could essentially determine the rights of disabled people on the internet. From 2017 to 2018, the number of lawsuits over inaccessible websites grew from 814 to more than 2,200, according to the accessible technology firm UsableNet. 

So while this case plays out in the courts, maybe Domino’s can prove it can be a Silicon Valley darling and create an accessible website and app for blind people. After all, it is a “technology company” now and it has to meet its MAU metrics and monetize mobile.

 As a result of the rise of social media over the last decade, this accurately describes a large portion of the population. Follower count and the number of likes have become the defining measures of worth of our time.

That's why the latest news that Instagram is toying with people's dopamine is causing some people to panic. They're currently testing hiding the total number of likes and video views for some people in a handful of countries. Per Instagram, "We want your friends to focus on the photos and videos you share, not how many likes they get."  So rather than focusing on the number of likes that picture of your ass gets, they want users to focus on the quality of the picture of your ass.

Despite the outrage, this is a great idea from a mental health perspective as there has been countless research showing social media causes diseases such as depression, anxiety and low self-esteem. Instagram was even ranked as the most detrimental social media platform to young people’s mental health and well-being. Facebook's $1 billion acquisition of Instagram in 2012 has been a large contributor to its nearly $600 billion current market capitalization. With reports that nearly 10% of accounts may be bots as well as the fact many likes come from click farms it's interesting Instagram is starting to show less information on reach at a time when the company is increasingly in the news for shady dealings.

While there will surely still be people making $700,000 per year off their butt, it will be interesting to see what kind of effect this has on the "social media influencer" career path, Instagram usage and ultimately Facebook's share price.

And it's going public!

Pinterest, the owner of the image search website known for the food and fashion photos that its users post, has hired Goldman Sachs Group Inc and JPMorgan Chase & Co to lead its initial public offering (IPO) later this year, people familiar with the matter said on Tuesday...Pinterest could raise around $1.5 billion in the IPO, which is likely to come in the first six months of 2019, the sources said, requesting anonymity to discuss the planning arrangements.

That sounds nice. And before you ask, we won't shit all over Pinterest for going public as an exit strategy after taking on way too much venture funding and never turning a profit before seeing its stock price crater when investors realize it never turned a profit. But only because Pinterest seems to be able to turn a marginal profit.

Pinterest's stock will crater when investors realize it has no ability to grow its user base.

Happy 2019, IPO market!

Pinterest taps Goldman Sachs, JPMorgan to lead IPO: sources [Reuters]

But those days are officially over. Wanna see proof?

That's Etsy stock over the past month. Let's play a game; show us where you think the market became finally convinced that Etsy was done playing do-gooder and is now ready to worship at the altar of Capitalism. We were always worried about Etsy's post-IPO soul because it seemed destined to fall prey to basic market logic. That said, even we didn't see things happening this quickly.

After some really rough stock performance, Etsy replaced its idealist CEO and chairman with a combo plate of a mercenary tech CEO and a venture capitalist. It's also about to conduct some painful layoffs. These alone would convey that Etsy is experimenting with the notion of profit over charity, but reporting from the WSJ seems to indicate that Etsy is freebasing that shit.

TPG Group Holdings revealed a 4.3% stake, while Dragoneer Investment Group said it now holds a 3.7% position in the Brooklyn-based online handmade-and-vintage goods marketplace. In separate regulatory filings, both said they’ve asked Etsy “to engage in discussions regarding strategic alternatives.” That’s commonly the language used to describe an effort to explore a potential sale or merger.

You know what two things you don't see together a lot? "TPG Capital" and "B Corporation."

Seeing Etsy co-opted by private equity giants is the true end of whatever Etsy attempted to be when it curated its much ballyhooed artisanal IPO. Seeing that it has finally sold - at least a large chunk of - its soul has made all of Wall Street's darkest dreams for Etsy come true, and that would be sad if Etsy wasn't a publicly-traded e-commerce company answering only to its shareholders by making actual money and keeping it.

So Etsy is dead. Long live Etsy.

Etsy Is Soaring After Private-Equity Firms Swoop In [WSJ]

Snap Inc. is working on an initial public offering that could value the popular virtual-messaging company at $25 billion or more, in what would be one of the highest-profile debuts in years.
The company, formerly known as Snapchat, is preparing the paperwork for an IPO with a view toward selling the shares as early as late March, according to several people familiar with the matter. There is no guarantee the four-year-old Venice, Calif., company will proceed with a share sale on that time frame or what its valuation might be.

That's right kiddos, big sexy tech IPOs are BACK! It feels like forever since we've seen huge valuation numbers thrown at companies that the vast majority of Wall Street only vaguely understands.

Like, how long has it been since you've seen something like this in the WSJ?:

In 2015, the company generated just $60 million in revenue. It isn’t clear whether Snap is profitable.

So good.

And even better is the notion that financial services professionals are about to start going apeshit over defining how to value a company created to make sexting safer and which now does... advertising? Social media marketing? Customized investment strategy advising? Hahaha... who fucking knows? Let's get this thing listed!!!

In fact, the rumors of what Snap would do with profits from an IPO don't seem that different from watching a nouveau riche tween geek hitting the dream mall after downing a speedball and case of Red Bull...

Snap could use some of the proceeds from an IPO as currency for acquisitions in so-called augmented-reality or virtual-reality, one of the people said. Snap recently changed its name from Snapchat as it moves from the main app for which it is known, which makes virtual messages disappear and is especially popular with teenagers. As part of that transformation, Snap recently said it would release its first hardware product, sunglasses known as Spectacles that are equipped with a wireless video camera.

Well that's... what's the opposite of clarifying?

And in keeping with the beautifully balls-out vaingloriousness of Snapchat's "business plan," the company is pumping up their IPO while running around bank-less.

Snap hasn’t hired any banks as it works on a public filing, known as an S-1, people familiar with the matter said.

Somewhere at 200 West Street there are more than a few people reading those words and giggling, but we would love to be in the room when the brozillionaire extrordinaire that is Snap CEO Evan Spiegel sits down with his bankers in the next few week and "talks big picture."

The future's so bright, we've got to wear...hideous Spectacles made by Snapchat, because maybe that's what the company does now.

Snapchat Parent Working on IPO Valuing Firm at $25 Billion or More [WSJ]

Unfortunately for Evita Breadsticks, it's a real f'ing doozy.

Earlier this morning, Recode's relentless Kara Swisher reported that Yahoo would soon be forced to admit to a massive security breach. According to Swisher, the 'fessin up would be pretty rough on Marissa and what's left of her team because the scope of the hack was troublingly wide:

[The hack] which became known in August when an infamous cybercriminal named “Peace” claimed on a website that he was selling credentials of 200 million Yahoo users from 2012 on the dark web for just over $1,800. The data allegedly included user names, easily decrypted passwords and personal information like birth dates and other email addresses.

200 million users hacked? This is maybe worse than the time Marissa threw that Marie Antoinette party, or that time she read a children's book about nickels to furious employees, or that other time she decided to do massive layoffs every Wednesday. Damn...200 million?

Well, after likely having its hand forced by Swisher, Yahoo did release a statement on the massive hack:

A recent investigation by Yahoo! Inc. has confirmed that a copy of certain user account information was stolen from the company’s network in late 2014 by what it believes is a state-sponsored actor. The account information may have included names, email addresses, telephone numbers, dates of birth, hashed passwords (the vast majority with bcrypt) and, in some cases, encrypted or unencrypted security questions and answers.

This happened two years ago and you're just now telling people that the Russians a state-sponsored actor has some of their most personal info? Oof. That's not a good look Marissa, especially when you're talking about 200 million accounts...

Yahoo believes that information associated with at least 500 million user accounts was stolen and the investigation has found no evidence that the state-sponsored actor is currently in Yahoo’s network. Yahoo is working closely with law enforcement on this matter.

Oh good Jiminy fuck, you guys. Really?

500 MILLION?!

TWO YEARS AGO?!

But in perhaps the most Marissa Mayer-y twist of this whole fiasco, it also appears that Yahoo has been aware that its security scuked for quite some.

Again, per Swisher:

In addition, internal sources at Yahoo said the company had been subjected to a number of previous incidents that were not managed correctly by CEO Marissa Mayer. One executive close to the situation said that former security head Alex Stamos had tried aggressively to get management to act more strongly, but he had not been successful. 

Yeah, but maybe this Stamos is a clown and Marissa was right to ignore his advice...Oh, he's currently running the security operation at Facebook? Yikes.

Cybersecurity is hard but disclosing a half billion security breaches two years after they occurred when you are finalizing being acquired is on a Donald Trump Jr. level of stupid. In fact, we would not be surprised if Verizon is asking its lawyers about the legality of hooking Marissa up to a lie detector and yelling "What else haven't you told us?!"

According to Kara Swisher over at Recode, "Evita Breadsticks" made a deal with Mozilla back in 2014 that appears to be transcendently lacking in both foresight and logic.

Under terms of a contract that has been seen by Recode, whoever acquires Yahoo might have to pay Mozilla annual payments of $375 million through 2019 if it does not think the buyer is one it wants to work with and walks away.
That’s according to a clause in the Silicon Valley giant’s official agreement with the browser maker that CEO Marissa Mayer struck in late 2014 to become the default search engine on the well-known Firefox browser in the U.S.

Basically, Marissa outbid Google on a contract that Yahoo maybe shouldn't have even gone after considering it had pivoted away from search before Marissa came aboard, and was chock full of terms predicated on the notion that Yahoo would never sell itself.

Welp.

Now, with Yahoo basically still a speck in Google's rearview on the search engine highway and up for sale in the most desperate of circumstances, Mayer's Mozilla deal looks spectacularly bad for an even more amazing reason. But don't take just our word for it:

According to the change-of-control term, 9.1 in the agreement, Mozilla has the right to leave the partnership if — under its sole discretion and in a certain time period — it did not deem the new partner acceptable. And if it did that, even if it struck another search deal, Yahoo is still obligated to pay out annual revenue guarantees of $375 million.

That's right, Mozilla can essentially back out of this thing if it doesn't feel Verizon or TPG or Warren Buffett/Dan Gilbert are going to make search a major priority for the New Yahoo.

Who owns Yahoo would indeed be a big concern for Mozilla, whose business depends on a robust search partner and the payments it gets from them for making it the default option for users of Firefox. About 90 percent of its revenue was due to its Google deal, for example, which paid Mozilla an annual guarantee of $300 million.

Spoiler Alert: Ain't no one buying Yahoo going to make search a priority.

So what Mayer is left to explain is why companies are bidding in the rumored range of $4 billion to acquire a former search giant that is no longer a search giant. Based on that, one would thinks that Yahoo's remaining suitors are going to maybe cut back on those final bids, and that's not even taking into account Marissa's moves on Yahoo Japan, Alibaba, patents or whatever else hasn't come out yet.

Once again, we ask the question; Marissa Mayer is begrudgingly selling Yahoo, but what is Yahoo?

Under Mayer deal, Mozilla could walk away and still get more than $1 billion if it doesn’t like Yahoo’s buyer [re /code]

And while one of the biggest deals out there in tech right now is the sale of the smoking husk of Yahoo, one major player in that situation is not going to find a badge with her name on it in Sun Valley this year.

Yahoo boss Marissa Mayer — who last year scored an invite to Allen & Company’s annual shindig for tech tycoons and media moguls but who was apparently a no-show at the swanky Idaho resort — didn’t make this year’s cut, according to a list obtained by The Post.

But even without Marissa on the premises, her ears are likely to be burning with that midsummer Idaho heat because seemingly everyone else in on the Yahoo deal will be in Sun Valley.

On the bidding side, Verizon Chief Executive Lowell McAdam and Tim Armstrong, the head of Verizon’s AOL unit, are expected to be strolling the leafy grounds at Sun Valley as they prepare a takeover offer for Yahoo’s core internet business that could top $4 billion.
McAdam and Armstrong are plotting, of course, with the help of investment bankers at Allen & Company, which is hoping to get a piece of the Yahoo deal in the form of lucrative advisory fees.

So, perhaps despite appearances, it makes sense to keep "Evita Breadsticks" at a distance this year. With final bids due in a few days and all the key players in one valley (even outside shotters Warren Buffett and Dan Gilbert) keeping Mayer - who has proven to have something of an indecision/management problem - back in her native valley is a canny move by the dudes at Allen & Co. if they want to finally lay down some real firmament upon which to build a sale of Marissa's badly damaged Purple Kingdom.

Or maybe they're just worried Marissa would have come in her Marie Antoinette costume.

Marissa Mayer didn’t make the cut at tech tycoon conference [NY Post]

Jack Dorsey’s struggling social network met with Yahoo’s management, led by Chief Executive Marissa Mayer, several weeks ago to discuss a possible merger of the companies, sources told The Post.

Oof. That's hard to read.

Marissa Mayer and Jack Dorsey letting their bleary eyes linger upon the other as Dolly Parton croons on the jukebox and the night turns into morning feels like a Silicon Valley-based Bukowski poem.

At the management meeting, Twitter and Yahoo execs spent several hours hashing out Yahoo’s financials, and whether a strategic combo might make sense, according to sources close to the talks.
“Twitter is the destination for instant news, and Yahoo has a lot of eyeballs on its site,” said one source. “The idea isn’t as crazy as you might think.”

Really? Because it seems pretty crazy to us, pal.

And apparently it seemed a little crazy to someone else...

Indeed, one source noted that Twitter CEO Dorsey didn’t even bother to show up for the Yahoo meeting.

So maybe Twitter was only half drunk and three-quarters desperate. Sure, flirting with Yahoo is harmless and fun, but waking up with Yahoo in the morning would have had consequences.

As for Twitter, Dorsey has enough problems fixing his own company, which has seen user growth flatline, insiders said.
“They’re very scared their shareholders would be outraged” by a Yahoo bid, one source said of Twitter. “Which is not, quite frankly, an unfounded fear.”

At least someone is talking sense in the dark confusion of last call for alcohol.

Twitter kicked tires on Yahoo merger [NY Post]

Well, it turns out that Jack is contemplative. He claims to Bilton that he doesn't check Twitter's stock price and speaks philosophically about the future:

“I want people to wake up every day and the first thing they check is Twitter in order to see what’s happening in the world,” he said between bites of his first crispy beef taco. “It’s a metaphor for checking the weather. Twitter has a similar potential.”

And downright cocky:

“If you were to describe what Twitter is,” he said, now moving on to his second beef taco, “it’s live news, entertainment, sports, and chat.”

Also hungry, apparently.

But Bilton learns that the palace unrest inside Twitter is still raging on apace, and now they're armed with analogies.

Every single product chief at Twitter—seven or eight people, depending on how you count—has been fired or forced to resign over the past decade. One former staffer told me the position is akin to the jinxed Defense Against the Dark Arts professorship in the Harry Potter saga, where every professor ends up dead or ousted at the end of the school year. A board member once said he could use only one word—“Shakespearean”—to describe the company.

Those are not fun comparisons, but Jack is not deterred. Probably because Jack remains almost unfathomably confident is his leadership abilities.

During our conversation, Dorsey tried to convince me that there was a better future for Twitter. He noted that Apple, at its low, was worth $271 million. Then Steve Jobs returned and set it on a path to a market capitalization of $774 billion. Disney, he also noted, was in the sink before Bob Iger retooled the company and led it to a valuation of more than $200 billion.

And those dudes only had one job.

#DelusionsOfGrandeur

TWITTER IS BETTING EVERYTHING ON JACK DORSEY. WILL IT WORK? [VF]