Policy – Page 22

Google can’t defend shady Chrome data hoarding as “browser agnostic,” court says

chrome browser, data privacy, Google, google chrome, Online Privacy, Policy / Kris Guyer / August 21, 2024

Chrome users who declined to sync their Google accounts with their browsing data secured a big privacy win this week after previously losing a proposed class action claiming that Google secretly collected personal data without consent from over 100 million Chrome users who opted out of syncing.

On Tuesday, the 9th US Circuit Court of Appeals reversed the prior court’s finding that Google had properly gained consent for the contested data collection.

The appeals court said that the US district court had erred in ruling that Google’s general privacy policies secured consent for the data collection. The district court failed to consider conflicts with Google’s Chrome Privacy Notice (CPN), which said that users’ “choice not to sync Chrome with their Google accounts meant that certain personal information would not be collected and used by Google,” the appeals court ruled.

Rather than analyzing the CPN, it appears that the US district court completely bought into Google’s argument that the CPN didn’t apply because the data collection at issue was “browser agnostic” and occurred whether a user was browsing with Chrome or not. But the appeals court—by a 3–0 vote—did not.

In his opinion, Circuit Judge Milan Smith wrote that the “district court should have reviewed the terms of Google’s various disclosures and decided whether a reasonable user reading them would think that he or she was consenting to the data collection.”

“By focusing on ‘browser agnosticism’ instead of conducting the reasonable person inquiry, the district court failed to apply the correct standard,” Smith wrote. “Viewed in the light most favorable to Plaintiffs, browser agnosticism is irrelevant because nothing in Google’s disclosures is tied to what other browsers do.”

Smith seemed to suggest that the US district court wasted time holding a “7.5-hour evidentiary hearing which included expert testimony about ‘whether the data collection at issue'” was “browser-agnostic.”

“Rather than trying to determine how a reasonable user would understand Google’s various privacy policies,” the district court improperly “made the case turn on a technical distinction unfamiliar to most ‘reasonable'” users, Smith wrote.

Now, the case has been remanded to the district court where Google will face a trial over the alleged failure to get consent for the data collection. If the class action is certified, Google risks owing currently unknown damages to any Chrome users who opted out of syncing between 2016 and 2024.

According to Smith, the key focus of the trial will be weighing the CPN terms and determining “what a ‘reasonable user’ of a service would understand they were consenting to, not what a technical expert would.”

The same privacy policy last year triggered a Google settlement with Chrome users whose data was collected despite using “Incognito” mode.

Matthew Wessler, a lawyer for Chrome users suing, told Ars that “we are pleased with the Ninth Circuit’s decision” and “look forward to taking this case on behalf of Chrome users to trial.”

A Google spokesperson, José Castañeda, told Ars that Google disputes the decision.

“We disagree with this ruling and are confident the facts of the case are on our side,” Castañeda told Ars. “Chrome Sync helps people use Chrome seamlessly across their different devices and has clear privacy controls.”

Google can’t defend shady Chrome data hoarding as “browser agnostic,” court says Read More »

Disney abandons Disney+ arbitration defense in restaurant allergy death case

disney+ arbitration, Policy / Paul Patrick / August 20, 2024

Getty Images | Gary Hershorn

Disney said it is abandoning its motion to compel arbitration in a case filed by a man who alleges his wife died from anaphylaxis after a restaurant at a Disney complex failed to honor requests for allergen-free food.

Disney’s motion to compel arbitration controversially cited the Disney+ streaming service’s subscriber agreement, which includes a binding arbitration clause. The plaintiff’s lawyer called the argument “absurd.”

Disney confirmed this week that it will withdraw the motion, which it filed on May 31.

“At Disney, we strive to put humanity above all other considerations,” Disney Experiences Chairman Josh D’Amaro said in a statement provided to Ars today. “With such unique circumstances as the ones in this case, we believe this situation warrants a sensitive approach to expedite a resolution for the family who have experienced such a painful loss. As such, we’ve decided to waive our right to arbitration and have the matter proceed in court.”

Disney has not yet submitted a filing to withdraw its motion to compel arbitration, but said it is in the process of doing so. A hearing on Disney’s motion to compel arbitration was scheduled for October 2, but the judge overseeing the case canceled that hearing in a notice posted today. The case is being heard in the 9th Judicial Circuit Court in Orange County, Florida.

Lawyer: Disney+ has nothing to do with restaurant

The lawsuit was filed by Jeffrey Piccolo, a New York resident, against Raglan Road Irish Pub and Restaurant and Walt Disney Parks and Resorts. The restaurant, owned by Great Irish Pubs Florida, is located at the Disney Springs shopping, dining, and entertainment complex in Lake Buena Vista. The family ate there in October 2023.

Piccolo’s lawyer, Brian Denney, wrote in a court filing that “there is simply no reading of the Disney+ Subscriber Agreement, the only Agreement Mr. Piccolo allegedly assented to in creating his Disney+ account, which would support the notion that he was agreeing on behalf of his wife or her estate, to arbitrate injuries sustained by his wife at a restaurant located on premises owned by a Disney theme park or resort from which she died. Frankly, any such suggestion borders on the absurd. Indeed, the Disney+ Subscriber Agreement was only between Mr. Piccolo and Disney+, not WDPR [Walt Disney Parks and Resorts] or any other Disney Affiliates.”

Denney provided Ars with a statement today. “Although Disney has withdrawn its motion, the arbitration clauses they relied upon in their motion still exist on their various platforms (i.e. streaming services; entrance tickets to Disney’s parks, etc.). This potentially puts other people injured by Disney’s negligence at risk of facing a similar legal challenge,” Denney said. “The right to a jury trial as set forth in the seventh amendment is a bedrock of our judicial system and should be protected and preserved. Attempts by corporations like Disney to avoid jury trials should be looked at with skepticism.”

Piccolo’s late wife, Kanokporn Tangsuan, was highly allergic to dairy and nuts. The lawsuit said that Tangsuan and her family advised the waiter of her severe food allergies. The waiter spoke with the chef and then confirmed to the family that the food would be allergen-free, the lawsuit said. Tangsuan and Piccolo “questioned the waiter several more times,” and the waiter “unequivocally assured them that the food would be allergen-free,” the lawsuit said.

Tangsuan, who was a medical doctor, began having severe difficulty breathing around 8: 45 pm and self-administered an EpiPen, the lawsuit said. She was rushed to a hospital but died.

“The medical examiner’s investigation determined that Kanokporn Tangsuan’s cause of death was as a result of anaphylaxis due to elevated levels of dairy and nut in her system,” the lawsuit said.

Disney abandons Disney+ arbitration defense in restaurant allergy death case Read More »

Texas judge who bought Tesla stock won’t recuse himself from X v. Media Matters

elon musk x, Policy, x v media matters / Kris Guyer / August 19, 2024

A judge banging a gavel next to a scale, representing justice — Getty Images | SimpleImages

A federal judge who bought more than $15,000 worth of Tesla stock has rejected a motion that could have forced him to recuse himself from a lawsuit that Elon Musk’s X Corp. filed against the nonprofit Media Matters for America.

US District Judge Reed O’Connor of the Northern District of Texas bought Tesla stock valued between $15,001 and $50,000 in 2022, a financial disclosure report shows. He was overseeing two lawsuits filed by X and recused himself from only one of the cases.

Media Matters argued in a July court filing that Tesla should be disclosed by X as an “interested party” in the case because of the public association between Musk and the Tesla brand. O’Connor rejected the Media Matters motion in a ruling issued Friday.

O’Connor wrote that financial interest “means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party.” His ruling said the standard is not met in this case and accused Media Matters of gamesmanship:

Defendants failed to show facts that X’s alleged connection to Tesla meets this standard. Instead, it appears Defendants seek to force a backdoor recusal through their Motion to Compel. Gamesmanship of this sort is inappropriate and contrary to the rules of the Northern District of Texas.

Judge should exit case, law professor writes

O’Connor made the ruling three days after recusing himself from a similar lawsuit filed by X. In that case, X sued the World Federation of Advertisers (WFA) and several large corporations that it accuses of an illegal boycott. Antitrust law professors have described X’s claims as weak.

O’Connor didn’t explain why he recused himself, but it seems clear that it wasn’t because of his Tesla stock. O’Connor also invested in Unilever, one of the defendants in X’s advertising lawsuit. Since Unilever is directly involved in the case, that’s likely what drove O’Connor’s recusal decision.

Musk’s case against Media Matters is also related to X’s problem with advertisers fleeing the platform formerly named Twitter. Media Matters published research on ads being placed next to pro-Nazi content on X, and the lawsuit blames the group for X’s advertising losses.

The federal code of judges’ conduct says that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” This includes cases in which the judge has a direct financial interest, and cases where the judge has “any other interest that could be affected substantially by the outcome of the proceeding.”

Harvard Law School Professor Noah Feldman argued that O’Connor should recuse himself from X v. Media Matters. While X and Tesla are legally separate entities, Feldman wrote in a Bloomberg Opinion piece last week that O’Connor should exit because of that “impartiality might reasonably be questioned” rule.

“The basic idea is that a judge should recuse himself if a reasonable person in possession of the relevant facts would believe that the judge has reason for bias. And there is good reason to think that this rule covers O’Connor,” Feldman wrote. “Because Musk is so closely identified with both X and Tesla, Tesla share prices are arguably affected by the performance of X.”

Texas judge who bought Tesla stock won’t recuse himself from X v. Media Matters Read More »

Judge calls foul on Venu, blocks launch of ESPN-Warner-Fox streaming service

antitrust, competition, ESPN, Fox, Policy, sports, streaming, syndication, warner bros. discovery / Kris Guyer / August 17, 2024

Out of bounds —

Upcoming launch of $42.99 sports package likely to “substantially lessen competition.”

Christopher Grimes, Financial Times – Aug 17, 2024 3: 15 am UTC

Texas losing to Alabama in the 2010 BCS championship — Gina Ferazzi via Getty

A US judge has temporarily blocked the launch of a sports streaming service formed by Disney’s ESPN, Warner Bros and Fox, finding that it was likely to “substantially lessen competition” in the market.

The service, dubbed Venu, was expected to launch later this year. But FuboTV, a sports-focused streaming platform, filed an antitrust suit in February to block it, arguing its business would “suffer irreparable harm” as a result.

On Friday, US District Judge Margaret Garnett in New York granted an injunction to halt the launch of the service while Fubo’s lawsuit against the entertainment giants works its way through the court.

The opinion was sealed but the judge noted in an entry on the court docket that Fubo was “likely to succeed on its claims” that by entering the agreement, the companies “will substantially lessen competition and restrain trade in the relevant market” in violation of antitrust law.

In a statement, ESPN, Fox and Warner Bros Discovery said they planned to appeal against the decision.

Venu was aimed at US consumers who had either ditched their traditional pay TV packages for streaming or never signed up for a cable subscription. “Cord cutting” has been eroding the traditional TV business for years, but live sports has remained a primary draw for customers who have held on to their cable subscriptions.

Fubo TV was launched in 2015 as a sports-focused streamer. It offers more than 350 channels—including those carrying major sporting events such as Premier League football matches, baseball, the National Football League and the US National Basketball Association—for monthly subscription prices starting at $79.99. Its offerings included networks owned by Disney and Fox.

ESPN, Fox and Warner Bros said Venu was “pro-competitive,” aimed at reaching “viewers who currently are not served by existing subscription options.”

Venu was expected to charge $42.99 a month when it launched later this month. It “will feature just 15 channels, all featuring popular live sports—the kind of skinny sports bundle that Fubo has tried to offer for nearly a decade, only to encounter tooth-and-nail resistance,” Fubo said in a court filing seeking the injunction.

Venu was expected to aggregate about $16 billion worth of sports rights, analysts have estimated. It was not expected to have an impact on the individual companies’ ability to strike new rights deals.

Analysts had questioned its position in the marketplace. Disney plans to roll out ESPN as a “flagship” streaming service in August 2025 that will carry programming that appears on the TV network as well as gaming, shopping and other interactive content. Disney chief executive Bob Iger said he wants the service to become the “pre-eminent digital sports platform.”

Fubo shares rose 16.8 percent after the ruling, but the stock is down 51 percent this year.

Judge calls foul on Venu, blocks launch of ESPN-Warner-Fox streaming service Read More »

ISP to Supreme Court: We shouldn’t have to disconnect users accused of piracy

cox copyright infringement, cox sony, Policy / Rejus Almole / August 16, 2024

A pair of scissors cutting an Ethernet cable.

A large Internet service provider wants the Supreme Court to rule that ISPs shouldn’t have to disconnect broadband users who have been accused of piracy. Cable firm Cox Communications, which is trying to overturn a ruling in a copyright infringement lawsuit brought by Sony, petitioned the Supreme Court to take up the case yesterday.

Cox said in a press release that a recent appeals court ruling “would force ISPs to terminate Internet service to households or businesses based on unproven allegations of infringing activity, and put them in a position of having to police their networks—contrary to customer expectations… Terminating Internet service would not just impact the individual accused of unlawfully downloading content, it would kick an entire household off the Internet.”

The case began in 2018 when Sony and other music copyright holders sued Cox, claiming that it didn’t adequately fight piracy on its network and failed to terminate repeat infringers. A US District Court jury in the Eastern District of Virginia ruled in December 2019 that Cox must pay $1 billion in damages to the major record labels.

Digital rights groups such as the Electronic Frontier Foundation (EFF) objected to the ruling, saying it “would result in innocent and vulnerable users losing essential Internet access.” The case went to the US Court of Appeals for the 4th Circuit, which vacated the $1 billion damages award in February 2024 but upheld one of the major copyright infringement verdicts.

Specifically, the appeals court affirmed the jury’s finding that Cox was guilty of willful contributory infringement and reversed a verdict on vicarious infringement. The vicarious liability verdict was scrapped “because Cox did not profit from its subscribers’ acts of infringement.”

Cox wants ruling on contributory infringement

On the contributory infringement charge, appeals court judges indicated that their hands were tied in part by Cox’s failure to make a key argument to the District Court. Proving “contributory infringement by an Internet service provider based on its subscribers’ direct infringement” can be achieved by showing “willful blindness,” the court said.

“Cox did not argue to the district court, as it does now on appeal, that notices of past infringement failed to establish its knowledge that the same subscriber was substantially certain to infringe again… Because Cox did not press this argument in the district court, it is forfeited for appeal,” the appeals court said. In District Court, Cox argued that copyright infringement notices sent to the ISP were too vague.

The Supreme Court held in MGM v. Grokster, in 2005, that “One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.”

In its Supreme Court petition yesterday, Cox said that circuit appeals courts “have split three ways over the scope of that ruling, developing differing standards for when it is appropriate to hold an online service provider secondarily liable for copyright infringement committed by users.”

Cox asked justices to decide whether the 4th Circuit “err[ed] in holding that a service provider can be held liable for ‘materially contributing’ to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it.”

The case raises one other major question, Cox told SCOTUS:

Generally, a defendant cannot be held liable as a willful violator of the law—and subject to increased penalties—without proof that it knew or recklessly disregarded a high risk that its own conduct was illegal. In conflict with the Eighth Circuit, the Fourth Circuit upheld an instruction allowing the jury to find willfulness if Cox knew its subscribers’ conduct was illegal—without proof Cox knew its own conduct in not terminating them was illegal.

Justices should rule on whether the 4th Circuit “err[ed] in holding that mere knowledge of another’s direct infringement suffices to find willfulness,” Cox said.

ISP to Supreme Court: We shouldn’t have to disconnect users accused of piracy Read More »

Popular AI “nudify” sites sued amid shocking rise in victims globally

ai sex images, California, child sexual abuse materials, csam, Deepfakes, deepnudes, extortion, non-consensual intimate imagery, nudify site, Policy, undress sites / Paul Patrick / August 16, 2024

San Francisco’s city attorney David Chiu is suing to shut down 16 of the most popular websites and apps allowing users to “nudify” or “undress” photos of mostly women and girls who have been increasingly harassed and exploited by bad actors online.

These sites, Chiu’s suit claimed, are “intentionally” designed to “create fake, nude images of women and girls without their consent,” boasting that any users can upload any photo to “see anyone naked” by using tech that realistically swaps the faces of real victims onto AI-generated explicit images.

“In California and across the country, there has been a stark increase in the number of women and girls harassed and victimized by AI-generated” non-consensual intimate imagery (NCII) and “this distressing trend shows no sign of abating,” Chiu’s suit said.

“Given the widespread availability and popularity” of nudify websites, “San Franciscans and Californians face the threat that they or their loved ones may be victimized in this manner,” Chiu’s suit warned.

In a press conference, Chiu said that this “first-of-its-kind lawsuit” has been raised to defend not just Californians, but “a shocking number of women and girls across the globe”—from celebrities like Taylor Swift to middle and high school girls. Should the city official win, each nudify site risks fines of $2,500 for each violation of California consumer protection law found.

On top of media reports sounding alarms about the AI-generated harm, law enforcement has joined the call to ban so-called deepfakes.

Chiu said the harmful deepfakes are often created “by exploiting open-source AI image generation models,” such as earlier versions of Stable Diffusion, that can be honed or “fine-tuned” to easily “undress” photos of women and girls that are frequently yanked from social media. While later versions of Stable Diffusion make such “disturbing” forms of misuse much harder, San Francisco city officials noted at the press conference that fine-tunable earlier versions of Stable Diffusion are still widely available to be abused by bad actors.

In the US alone, cops are currently so bogged down by reports of fake AI child sex images that it’s making it hard to investigate child abuse cases offline, and these AI cases are expected to continue spiking “exponentially.” The AI abuse has spread so widely that “the FBI has warned of an uptick in extortion schemes using AI generated non-consensual pornography,” Chiu said at the press conference. “And the impact on victims has been devastating,” harming “their reputations and their mental health,” causing “loss of autonomy,” and “in some instances causing individuals to become suicidal.”

Suing on behalf of the people of the state of California, Chiu is seeking an injunction requiring nudify site owners to cease operation of “all websites they own or operate that are capable of creating AI-generated” non-consensual intimate imagery of identifiable individuals. It’s the only way, Chiu said, to hold these sites “accountable for creating and distributing AI-generated NCII of women and girls and for aiding and abetting others in perpetrating this conduct.”

He also wants an order requiring “any domain-name registrars, domain-name registries, webhosts, payment processors, or companies providing user authentication and authorization services or interfaces” to “restrain” nudify site operators from launching new sites to prevent any further misconduct.

Chiu’s suit redacts the names of the most harmful sites his investigation uncovered but claims that in the first six months of 2024, the sites “have been visited over 200 million times.”

While victims typically have little legal recourse, Chiu believes that state and federal laws prohibiting deepfake pornography, revenge pornography, and child pornography, as well as California’s unfair competition law, can be wielded to take down all 16 sites. Chiu expects that a win will serve as a warning to other nudify site operators that more takedowns are likely coming.

“We are bringing this lawsuit to get these websites shut down, but we also want to sound the alarm,” Chiu said at the press conference. “Generative AI has enormous promise, but as with all new technologies, there are unanticipated consequences and criminals seeking to exploit them. We must be clear that this is not innovation. This is sexual abuse.”

AT&T and Verizon ask FCC to throw a wrench into Starlink’s mobile plan

Policy, spacex starlink, starlink t-mobile / Paul Patrick / August 15, 2024

Satellite to mobile service —

Carriers allege Starlink/T-Mobile will interfere with existing mobile networks.

Jon Brodkin – Aug 15, 2024 8: 23 pm UTC

Promotional image illustrating a satellite launch for the T-Mobile/Starlink partnership — T-Mobile

AT&T and Verizon are urging telecom regulators to reject a key part of SpaceX’s plan to offer cellular service with T-Mobile, claiming the satellite system will interfere with and degrade service for terrestrial mobile broadband networks.

Filings urging the Federal Communications Commission to deny SpaceX’s request for a waiver were submitted by AT&T and Verizon this week. The plan by SpaceX’s Starlink division also faces opposition from satellite companies EchoStar (which owns Dish and Hughes) and Omnispace.

SpaceX and T-Mobile plan to offer Supplemental Coverage from Space (SCS) for T-Mobile’s cellular network using SpaceX satellites. As part of that plan, SpaceX is seeking a waiver of FCC rules regarding out-of-band emission limits.

AT&T’s petition to deny the SpaceX waiver request said the FCC’s “recent SCS order appropriately recognized that SCS deployments should not present any risk to the vital terrestrial mobile broadband networks upon which millions of Americans rely today. The Commission authorized SCS as secondary to terrestrial mobile service, correctly explaining that the SCS framework must ‘retain service quality of terrestrial networks, protect spectrum usage rights, and minimize the risk of harmful interference.'”

AT&T said SpaceX’s requested “ninefold increase” to the allowable power flux-density limits for out-of-band emissions “would cause unacceptable harmful interference to incumbent terrestrial mobile operations. Specifically, AT&T’s technical analysis shows that SpaceX’s proposal would cause an 18% average reduction in network downlink throughput in an operational and representative AT&T PCS C Block market deployment.”

Verizon predicts phone problems

Verizon’s opposition to the waiver request similarly said that SpaceX’s proposal “would subject incumbent, primary terrestrial licensee operations in adjacent bands to harmful interference.” Wireless phone performance will suffer, Verizon said:

Assuming a handset antenna gain of -3 dBi, SpaceX’s proposal still results in an interference to noise (I/N) ratio of -3 dB—well above the ITU [International Telecommunication Union] threshold SpaceX claims would protect terrestrial devices. SpaceX’s proposed margin therefore fails to adequately protect terrestrial user equipment from potential interference from SCS satellite systems, including user equipment that may not fall within the flagship performance parameters, and should be rejected.”

SpaceX likewise provides no reasonable justification for why a service intended to supplement primary terrestrial services should be allowed to cause harmful interference in contravention of the Commission’s rules and policies.

AT&T and Verizon both intend to offer Supplemental Coverage from Space as part of separate deals with AST SpaceMobile. AT&T was running ads indicating that it already offered such coverage even though it isn’t available yet, and grudgingly agreed to change the ads after a complaint from T-Mobile.

SpaceX and other entities interested in the proceeding have until August 22 to submit responses in the FCC docket. The deadline for replies to responses is August 29.

We contacted SpaceX today and will update this article if it provides a response. While the company hasn’t yet responded to the AT&T and Verizon filings, it looks like SpaceX will put forward a spirited defense.

SpaceX: Rivals will “make misleading claims”

SpaceX and T-Mobile representatives met with FCC staff on August 8, SpaceX said in a filing that describes the meeting. SpaceX and T-Mobile told FCC staff that their plan will not harm other wireless operations and predicted that competitors will make misleading claims:

With their commercial launch fast approaching, the parties also expressed an expectation that competitors would continue to make misleading claims and draconian demands to further delay Commission action and limit service to American consumers. Indeed, each time that SpaceX has demonstrated that it would not cause harmful interference to other operators—often based on those parties’ own claimed assumptions—those competitors have moved the goalposts or have claimed their analysis should not have been trusted in the first place. These operators’ shapeshifting arguments and demands should be seen for what they are: last-minute attempts to block a more advanced supplemental coverage partnership and siphon sensitive information to aid their own competing efforts. The Commission must not allow competitive gamesmanship to stand in the way of lifesaving service for American consumers.

In addition to requesting a waiver, SpaceX’s filing argued that the FCC’s emissions limit is too strict and should be changed. The FCC should “reconsider its inappropriately uniform out-of-band emissions PFD limit of -120 dBW/m²/MHz, which is an order of magnitude more restrictive than necessary to protect terrestrial operations adjacent to the PCS G Block,” SpaceX wrote. “The limit does not take into account the role of frequency in determining appropriate PFD limits to meet the internationally accepted -6 dB interference-to-noise (‘I/N’) threshold.”

T-Mobile told the FCC in last week’s meeting that “it has both the strong incentive and the obligation to ensure that out-of-band emissions do not cause harmful interference” because it has licenses in both the PCS G Block and adjacent PCS C Block. “Based on its review of SpaceX’s waiver request and petition for reconsideration, T-Mobile reiterated its confidence that the proposed operations in the PCS G Block would not cause harmful interference to adjacent-band terrestrial operations, including T-Mobile’s own adjacent-band operations,” the filing said.

SpaceX said it has launched over 100 satellites with direct-to-cellular capabilities so far, and that both it and T-Mobile “have made significant progress testing the early network, demonstrating the robust capabilities of the system.”

AT&T and Verizon ask FCC to throw a wrench into Starlink’s mobile plan Read More »

New Zealand official signs extradition order to send Kim Dotcom to US

Kim Dotcom, kim dotcom extradition, kim dotcom megaupload, Policy / Mike M. / August 15, 2024

Dotcom won’t be megauploaded to US just yet —

12 years after Megaupload shutdown, Dotcom will keep fighting extradition to US.

Jon Brodkin – Aug 15, 2024 4: 38 pm UTC

Kim Dotcom smiling and speaking to reporters outside a courthouse — Enlarge / Kim Dotcom speaks to the media after a bail hearing at Auckland District Court on December 1, 2014, in Auckland, New Zealand.

Getty Images | Fiona Goodall

Kim Dotcom has lost yet another ruling in his attempt to avoid extradition from New Zealand to the United States, over a dozen years after the file-sharing site Megaupload was shut down. But he hasn’t run out of appeal options yet.

On Thursday, a government spokesperson confirmed that New Zealand Justice Minister Paul Goldsmith signed an extradition order for Dotcom, according to Reuters.

“I have received extensive advice from the Ministry of Justice on this matter,” Goldsmith said in a statement quoted by numerous news organizations. “I considered all of the information carefully and have decided that Mr. Dotcom should be surrendered to the US to face trial. As is common practice, I have allowed Mr. Dotcom a short period of time to consider and take advice on my decision. I will not, therefore, be commenting further at this stage.”

The latest extradition decision, like previous ones, is not final. Dotcom said this week that he will appeal. “By the time the appeals are done, if ever, the world will be a very different place,” he wrote.

“I love New Zealand. I’m not leaving,” he also posted today.

A New Zealand Herald article today said that Dotcom’s expected appeal could drag the case out another few years. “If extradition goes ahead, it could be years from now,” the newspaper wrote.

Dotcom blasts “obedient US colony”

Dotcom blasted the New Zealand government, writing that “the obedient US colony in the South Pacific just decided to extradite me for what users uploaded to Megaupload, unsolicited, and what copyright holders were able to remove with direct delete access instantly and without question.”

Megaupload was shut down by US authorities in January 2012. Dotcom and others were indicted on charges of conspiracy to commit racketeering, conspiracy to commit money laundering, conspiracy to commit copyright infringement, criminal copyright infringement, aiding and abetting of criminal copyright infringement, and wire fraud.

Dotcom has been able to delay extradition despite numerous rulings against him. One New Zealand judge ordered Dotcom’s extradition in December 2015. The extradition order was upheld in 2017 by one appeals court and again in 2018 by another appeals court.

The New Zealand Supreme Court ruled against Dotcom and two other defendants, Mathias Ortmann and Bram van der Kolk, in December 2021. Ortmann and van der Kolk reached a deal that let them “avoid being extradited to the US in exchange for facing charges in New Zealand,” an Associated Press article in May 2022 said.

The AP article said that despite the Supreme Court ruling against the three Megaupload defendants, extradition still required approval from the justice minister. “And even that decision could be appealed,” the AP wrote.

After the 2021 Supreme Court ruling, Stuff quoted Victoria University law professor Geoff McLay as saying that judicial review of an extradition decision by the justice minister would likely involve hearings before the New Zealand High Court, Court of Appeal and Supreme Court. If the justice minister “makes a decision they should be extradited, I would imagine they would immediately judicially review his decision which will then kick off the whole shebang again,” McLay said at the time.

In a May 2022 podcast, New Zealand Herald investigative reporter David Fisher said, “I think there’s a good possibility that we have another three or five years in court wrangles through this case. You might have the justice minister sign the extradition warrant, but then that will get appealed to the High Court through judicial review, then it will go to the Court of Appeal and on to the Supreme Court. And when you get to a point three or five years down the track where Dotcom’s health may not be something the US system is able to deal with—and that could be good, fresh grounds for bouncing extradition.”

New Zealand official signs extradition order to send Kim Dotcom to US Read More »

Artists claim “big” win in copyright suit fighting AI image generators

AI, AI image generators, Artificial Intelligence, copyright infringement, copyright law, deviantART, generative ai, LAION-5b, MidJourney, Policy, runway ai, Stability AI, Stable Diffusion / Paul Patrick / August 14, 2024

Back to the drawing board —

Artists prepare to take on AI image generators as copyright suit proceeds

Ashley Belanger – Aug 14, 2024 9: 09 pm UTC

Artists defending a class-action lawsuit are claiming a major win this week in their fight to stop the most sophisticated AI image generators from copying billions of artworks to train AI models and replicate their styles without compensating artists.

In an order on Monday, US district judge William Orrick denied key parts of motions to dismiss from Stability AI, Midjourney, Runway AI, and DeviantArt. The court will now allow artists to proceed with discovery on claims that AI image generators relying on Stable Diffusion violate both the Copyright Act and the Lanham Act, which protects artists from commercial misuse of their names and unique styles.

“We won BIG,” an artist plaintiff, Karla Ortiz, wrote on X (formerly Twitter), celebrating the order. “Not only do we proceed on our copyright claims,” but “this order also means companies who utilize” Stable Diffusion models and LAION-like datasets that scrape artists’ works for AI training without permission “could now be liable for copyright infringement violations, amongst other violations.”

Lawyers for the artists, Joseph Saveri and Matthew Butterick, told Ars that artists suing “consider the Court’s order a significant step forward for the case,” as “the Court allowed Plaintiffs’ core copyright-infringement claims against all four defendants to proceed.”

Stability AI was the only company that responded to Ars’ request to comment, but it declined to comment.

Artists prepare to defend their livelihoods from AI

To get to this stage of the suit, artists had to amend their complaint to better explain exactly how AI image generators work to allegedly train on artists’ images and copy artists’ styles.

For example, they were told that if they “contend Stable Diffusion contains ‘compressed copies’ of the Training Images, they need to define ‘compressed copies’ and explain plausible facts in support. And if plaintiffs’ compressed copies theory is based on a contention that Stable Diffusion contains mathematical or statistical methods that can be carried out through algorithms or instructions in order to reconstruct the Training Images in whole or in part to create the new Output Images, they need to clarify that and provide plausible facts in support,” Orrick wrote.

To keep their fight alive, the artists pored through academic articles to support their arguments that “Stable Diffusion is built to a significant extent on copyrighted works and that the way the product operates necessarily invokes copies or protected elements of those works.” Orrick agreed that their amended complaint made plausible inferences that “at this juncture” is enough to support claims “that Stable Diffusion by operation by end users creates copyright infringement and was created to facilitate that infringement by design.”

“Specifically, the Court found Plaintiffs’ theory that image-diffusion models like Stable Diffusion contain compressed copies of their datasets to be plausible,” Saveri and Butterick’s statement to Ars said. “The Court also found it plausible that training, distributing, and copying such models constitute acts of copyright infringement.”

Not all of the artists’ claims survived, with Orrick granting motions to dismiss claims alleging that AI companies removed content management information from artworks in violation of the Digital Millennium Copyright Act (DMCA). Because artists failed to show evidence of defendants altering or stripping this information, they must permanently drop the DMCA claims.

Part of Orrick’s decision on the DMCA claims, however, indicates that the legal basis for dismissal is “unsettled,” with Orrick simply agreeing with Stability AI’s unsettled argument that “because the output images are admittedly not identical to the Training Images, there can be no liability for any removal of CMI that occurred during the training process.”

Ortiz wrote on X that she respectfully disagreed with that part of the decision but expressed enthusiasm that the court allowed artists to proceed with false endorsement claims, alleging that Midjourney violated the Lanham Act.

Five artists successfully argued that because “their names appeared on the list of 4,700 artists posted by Midjourney’s CEO on Discord” and that list was used to promote “the various styles of artistic works its AI product could produce,” this plausibly created confusion over whether those artists had endorsed Midjourney.

“Whether or not a reasonably prudent consumer would be confused or misled by the Names List and showcase to conclude that the included artists were endorsing the Midjourney product can be tested at summary judgment,” Orrick wrote. “Discovery may show that it is or that is it not.”

While Orrick agreed with Midjourney that “plaintiffs have no protection over ‘simple, cartoony drawings’ or ‘gritty fantasy paintings,'” artists were able to advance a “trade dress” claim under the Lanham Act, too. This is because Midjourney allegedly “allows users to create works capturing the ‘trade dress of each of the Midjourney Named Plaintiffs [that] is inherently distinctive in look and feel as used in connection with their artwork and art products.'”

As discovery proceeds in the case, artists will also have an opportunity to amend dismissed claims of unjust enrichment. According to Orrick, their next amended complaint will be their last chance to prove that AI companies have “deprived plaintiffs ‘the benefit of the value of their works.'”

Saveri and Butterick confirmed that “though the Court dismissed certain supplementary claims, Plaintiffs’ central claims will now proceed to discovery and trial.” On X, Ortiz suggested that the artists’ case is “now potentially one of THE biggest copyright infringement and trade dress cases ever!”

“Looking forward to the next stage of our fight!” Ortiz wrote.

Artists claim “big” win in copyright suit fighting AI image generators Read More »

Disney fighting restaurant death suit with Disney+ terms “absurd,” lawyer says

Disney, disney springs, Florida, Policy, raglan road Irish pub, streaming service, Walt Disney World resorts, wrongful death / Kris Guyer / August 14, 2024

Enlarge / Raglan Road Irish Pub at Disney Springs in Orlando, Florida, USA.

After a woman, Kanokporn Tangsuan, with severe nut allergies died from anaphylaxis due to a Disney Springs restaurant neglecting to honor requests for allergen-free food, her husband, Jeffrey Piccolo, sued on behalf of her estate.

In May, Disney tried to argue that the wrongful death suit should be dismissed because Piccolo subscribed to a one-month free trial of Disney+ four years before Tangsuan’s shocking death. Fighting back this month, a lawyer representing Tangsuan’s estate, Brian Denney, warned that Disney was “explicitly seeking to bar its 150 million Disney+ subscribers from ever prosecuting a wrongful death case against it in front of a jury even if the case facts have nothing to with Disney+.”

According to Disney, by agreeing to the Disney+ terms, Piccolo also agreed to other Disney terms vaguely hyperlinked in the Disney+ agreement that required private arbitration for “all disputes” against “The Walt Disney Company or its affiliates” arising “in contract, tort, warranty, statute, regulation, or other legal or equitable basis.”

However, Denney argued that “there is simply no reading of the Disney+ Subscriber Agreement, the only Agreement Mr. Piccolo allegedly assented to in creating his Disney+ account, which would support the notion that he was agreeing on behalf of his wife or her estate, to arbitrate injuries sustained by his wife at a restaurant located on premises owned by a Disney theme park or resort from which she died.”

“Frankly, any such suggestion borders on the absurd,” Denney said.

Denney argued that Disney’s motion to compel arbitration was “so outrageously unreasonable and unfair as to shock the judicial conscience.”

It’s particularly shocking, Denney argued, because of a “glaring ambiguity” that Disney “ignores”—that Piccolo more recently agreed to other Disney terms that “directly conflict” with the terms that Disney prefers to reference in its motion.

Denney argued that Disney is “desperately” clinging to “Piccolo’s purported consent to the Disney Terms of Use in November of 2019, because the My Disney Experience Terms and Conditions he allegedly consented to in 2023″—when purchasing tickets on Disney’s website to Epcot that went unused—”do not contain an arbitration provision.”

Those terms instead “rather expressly contemplate that the parties may file lawsuits and requires those suits to be filed in Orange County Florida and to be governed by Florida law,” Denney said. They also specify that the My Disney Experience terms prevail amid any conflict with other terms.

This renders “the arbitration provision in the Disney Terms of Use unenforceable,” Denney argued, requesting Disney’s motion be denied and suggesting that Disney is attempting “to deprive the Estate of Kanokporn Tangsuan of its right to a jury trial.”

He also reminded the court that in nursing home cases, Florida courts have “repeatedly held that a resident’s estate will not be bound by an arbitration agreement signed by a spouse or other family member in their individual capacity.”

Disney is hoping that its Disney+ terms argument will push the litigation out of the court and behind closed doors of arbitration, arguing that “Piccolo’s remaining claims against Great Irish Pubs”—which does business as Raglan Road Irish Pub—”should be stayed as well.” That would be proper, Disney argued, because Piccolo’s claims against Disney “are based entirely on Great Irish Pubs’ alleged misconduct” and “it would be problematic for this litigation to continue since each tribunal may decide the issues differently.”

Disney also noted that the litigation should also be stayed if Great Irish Pubs joined the arbitration, which Disney “would not oppose.”

Denney argued that Disney’s motion to compel arbitration was “fatally flawed for numerous independent reasons.”

“There is not a single authority in Florida that would support such an inane argument,” Denney argued. It’s “preposterous,” he said, that Disney is arguing that “when Jeffrey Piccolo, individually, allegedly signed himself up for a free trial of Disney+ back in 2019 or bought Epcot tickets in 2023, he somehow bound the non-existent Estate of Kanokporn Tangsuan (his wife, who was alive at both times) to an arbitration agreement buried within certain terms and conditions.”

Disney fighting restaurant death suit with Disney+ terms “absurd,” lawyer says Read More »

ISPs worry that killing FCC net neutrality rules will come back to haunt them

fcc net neutrality, Policy / Rejus Almole / August 14, 2024

Illustration of ones and zeroes overlaid on a US map. — Getty Images | Matt Anderson Photography

ISPs asked the US Supreme Court to strike down a New York law that requires broadband providers to offer $15-per-month service to people with low incomes. On Monday, a Supreme Court petition challenging the state law was filed by six trade groups representing the cable, telecom, mobile, and satellite industries.

Although ISPs were recently able to block the FCC’s net neutrality rules, this week’s petition shows the firms are worried about states stepping into the regulatory vacuum with various kinds of laws targeting broadband prices and practices. A broadband-industry victory over federal regulation could bolster the authority of New York and other states to regulate broadband. To prevent that, ISPs said the Supreme Court should strike down both the New York law and the FCC’s broadband regulation, although the rulings would have to be made in two different cases.

A situation in which the New York law is upheld while federal rules are struck down “will likely lead to more rate regulation absent the Court’s intervention,” ISPs told the Supreme Court. “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. As petitioners’ members have shown, New York’s price cap will require them to sell broadband at a loss and deter them from investing in expanding their broadband networks. As rate regulation proliferates, those harms will as well, stifling critical investment in bringing broadband to unserved and underserved areas.”

The New York law was upheld in April by the US Court of Appeals for the 2nd Circuit, which reversed a 2021 District Court ruling. New York Attorney General Letitia James agreed last week not to enforce the $15 broadband law while the Supreme Court considers whether to take up the case.

“Although New York has agreed not to enforce its rate-regulation law while the Court resolves this petition, New York continues to assert that it has the right to do what the FCC cannot,” ISPs wrote. “This case thus presents the question whether broadband services will remain protected from common-carrier treatment and rate regulation by individual States.”

NY law’s fate tied to FCC regulation

The fate of the New York law is tied in part to the Federal Communications Commission’s April 2024 decision to revive net neutrality rules and regulate ISPs as common carriers under Title II of the Communications Act. When New York enacted its affordability law, the FCC was not regulating ISPs under Title II. The lack of federal regulation gave states more leeway to implement their own laws.

When judges at the 2nd Circuit upheld the New York law, they wrote that “a federal agency cannot exclude states from regulating in an area where the agency itself lacks regulatory authority.” If the FCC’s revived common-carrier regulations are upheld, ISPs would have a better chance at overturning the New York law.

But ISPs are trying to get the net neutrality and common-carrier regulations overturned—and having success on that front. The US Court of Appeals for the 6th Circuit stayed enforcement of the FCC regulations while litigation is pending, and a panel of judges said that ISPs are likely to win the case. The “broadband providers have shown that they are likely to succeed on the merits,” 6th Circuit judges wrote.

ISPs are worried that if they succeed in killing the FCC regulation, they will be subject to many state laws like New York’s. “The upshot of the Sixth Circuit and Second Circuit decisions is that each State can now do what the FCC cannot—subject an interstate information service to common-carrier regulation, including rate regulation,” ISP lobby groups said in their Supreme Court petition. This will be “to the detriment of providers, consumers, and the nation,” they claimed.

ISPs asked the Supreme Court to “confirm that the federal Communications Act—not a patchwork of state laws—governs the regulation of interstate communications services such as broadband.”

ISPs worry that killing FCC net neutrality rules will come back to haunt them Read More »

Elon Musk’s preferred judge recuses himself from X’s case against advertisers

elon musk, Policy / Paul Patrick / August 13, 2024

Judge not —

Judge who had stock in Tesla and Unilever drops X case over alleged ad boycott.

Jon Brodkin – Aug 13, 2024 10: 01 pm UTC

Elon Musk frowns while sitting on stage during a conference interview. — Enlarge / Elon Musk speaks at the Satellite Conference and Exhibition on March 9, 2020 in Washington, DC.

Getty Images | Win McNamee

US District Judge Reed O’Connor today recused himself from Elon Musk’s lawsuit alleging that advertisers targeted X with an illegal boycott.

O’Connor was apparently Musk’s preferred judge in the lawsuit filed last week against the World Federation of Advertisers (WFA) and several large corporations. In order to land O’Connor, the Musk-owned X Corp. sued in the Wichita Falls division of the US District Court for the Northern District of Texas.

O’Connor purchased Tesla stock, a fact that generated controversy in a different X lawsuit that he is still overseeing. He also invested in Unilever, one of the defendants in X’s advertising lawsuit. The Unilever investment appears to be what drove O’Connor’s recusal decision.

“I hereby recuse myself from the above numbered case,” O’Connor wrote in a filing today. The case was reassigned to District Judge Ed Kinkeade. Both judges were appointed by President George W. Bush. O’Connor is based in Fort Worth, while Kinkeade is based in Dallas.

A financial disclosure report for calendar year 2022 shows that O’Connor owned stock in Unilever valued at $15,000 or less. The investment generated a dividend of $1,000 or less during 2022, the filing indicates. Unilever is one of the defendants named in X’s advertising lawsuit, along with Mars, Incorporated; CVS Health Corporation; and Ørsted A/S.

The 2022 disclosure also listed a purchase of Tesla stock valued between $15,001 and $50,000. “It is unclear whether O’Connor has sold his investment of up to $50,000 in Tesla stock, because the judge’s disclosure form covering the 2023 calendar year is not publicly available,” NPR wrote on Friday. “He has requested a filing extension, according to an official with the administrative office of US courts who was not authorized to speak on the record.”

Kinkeade filed a 2023 financial disclosure report, which is much shorter than O’Connor’s and lists several rental properties and bank interest.

Media Matters questioned judge’s impartiality

O’Connor’s Tesla stock has been a point of contention in X’s case against Media Matters for America, which O’Connor has not recused himself from. O’Connor remaining on the Media Matters case while recusing himself from the advertising case suggests that his Unilever investment is the main factor in the recusal.

Media Matters drew Musk’s ire when it published research on ads being placed next to pro-Nazi content on X. Musk’s lawsuit blames Media Matters for the platform’s advertising losses.

Media Matters argued in a July court filing that Tesla, the Musk-led electric carmaker, should be listed by X as an “interested party” in the case. “Here, if the Court indeed owns stock in Tesla, recusal would be required under two separate provisions of the judicial recusal statue,” Media Matters wrote. “By failing to disclose Tesla, however, X has deprived the Court of information it needed to make an informed recusal decision.”

Media Matters said there is a public association between Musk and the Tesla brand, and that this association leads to doubts “about whether a judge with a financial interest in Musk could impartially adjudicate” the case filed by X.

“Because an investment in Tesla is, in large part, a bet on Musk’s reputation and management choices—key issues in this case—ownership of Tesla stock would be disqualifying,” Media Matters wrote.

X, previously named Twitter, has argued that O’Connor shouldn’t have to recuse himself from the Media Matters case. Tesla does not exert any control over X, and Media Matters’ argument that Tesla has an interest in the case is “tenuous and speculative,” X wrote in a court filing.

O’Connor gave X a victory in April when he denied a Media Matters motion to delay discovery until its motion to dismiss is resolved. Media Matters has complained about the financial toll of the lawsuit, telling the court that “X’s discovery requests are extremely broad and unduly burdensome.” Media Matters also issued a statement to the press saying it needed to lay off staff because of a “legal assault on multiple fronts.”

O’Connor was assigned to the Media Matters case in November 2023 after the original judge recused himself.

Elon Musk’s preferred judge recuses himself from X’s case against advertisers Read More »