Tech attorney here (with no relation to this specific matter). I wouldn't say they don't have a leg to stand on. I think it will prove to be very interesting.
Count 1 (antitrust) fails because you need to actually allege a conspiracy, not just say "Twitter is also a customer of AWS!" I mean, I immediately realized it was deficient on their initial brief, because they didn't even back up enough evidence to satisfy their own citations, let alone explain how they can pass the big citation they conveniently omit (Twombly).
Counts 2 and 3 fail because the gravamen is that AWS violated its own contract by not giving 30 days' notice. Ignoring the very next paragraph that says AWS can terminate with no notice. Their own response to that point in the reply brief was pitiful.
Actually, their response was so pitiful they tried a second reply brief (that's the "supplemental authority" brief) where they instead changed their argument to "this is our reading of the contract, and you have to endorse it because it's a contract of adhesion." Which instead comes across as "we totally missed that part in the contract, and now we're trying to legal fu our way out of not reading a contract." Changing your argument on the fly doesn't tend to go very well in the courts.
The quality of their legal briefs is not impressive, and when you're going up a large corporation with deep pockets and competent legal attorneys to defend themselves, you're going to have a very rough time of it.
This is the part I don't understand. Did they really think no one would notice it?
Their previous attorney apparently dropped them as a client sometime around the 8th, and I suspect this lawsuit was put together in extreme rush on the 10th to keep Parler running. It absolutely wouldn't surprise me if neither Parler nor the attorney actually reviewed the agreement in enough detail to notice that AWS had the right to terminate immediately. Admittedly, this theory doesn't explain how the antitrust count gets added.
Argument from authority is one of the weakest forms of argument. If you want to weaken it, you turn it into argument from claimed authority that no evidence was offered for. If you want to weaken it even further, you set that weak argument against a judge's decision and the reasoned analysis of other people who clearly have read the legal briefs and have pointed out specific problems with the arguments made.
This is exactly what you did. Now maybe you are exactly what you say and you are exactly right. However based on your current content, you are indistinguishable from a troll. And that is exactly how people are responding to you.
If you don't want people to treat you as a troll, you need to provide enough actual meat that it is clear that you are not a troll. But until you are willing to do that, you should expect the response that you are getting.
If your expectations are different, then that is your mistake. You should learn how the internet works and adjust your expectations accordingly.
If you want an example to look at, see https://news.ycombinator.com/user?id=rayiner. He is a respected lawyer who often posts opinions that run counter to the average opinion on this site. But when he speaks about the law, people listen. Not because he claims to be a lawyer, but because he speaks in a way that demonstrates his knowledge of the subject.
If tptacek, security researcher, says a case is no real case (even with arguments) and an attorney contradicts him then that is evidence tptacek is wrong.
Realistically, I still expect Ptacek to be right - I don't see how Amazon could be forced to host something they don't want to. Nor why it would make sense to make them to. So I hope this lawsuit fails. But the way Parler was assassinated seems a bit questionable and there might be some cause for complaint there. It may be that AWS's terms of service are overruled by some law somewhere and they'll owe someone money.
Or, put more simply, to me, reasoning from a non-expert trumps non-reasoning from an expert.
> If tptacek, security researcher, says a case is no real case (even with arguments) and an attorney contradicts him then that is evidence tptacek is wrong.
There is no evidence lest it's explained why the former is wrong. I know for a fact that a judge with actual credentials didn't think the case had merit. Now LiquidmetalFish claims otherwise, without any supporting arguments or reasoning.
If you wanted to write a "long form" (?) reply then you could have done so. In the meantime the hand wave above has to stand on its own merits; or more specifically fall on its lack thereof.
I also think this entire thread will be worth revisiting upon appeal.
This only further highlights how unnecessary the original low value reply was. Instead of responding with something of substance that took five additional minutes to write, you told us your qualifications instead of your views.
> I also think this entire thread will be worth revisiting upon appeal.
I don't really see why. None of the reasons you got downvoted have anything to do with this specific case (low effort comments, arguments to authority, complaining about the response to the forementioned, and then arguments that are poorly explored/rely on erroneous facts).
Even if Parler ultimately won via an entirely new theory of US law as you have argued, it wouldn't change that your comments here today could have been better and would have been received better if they were.
Your subsequent comment avoided all of that by having something tangible which can be evaluated.
I find it interesting that you think you can read minds as what expectations downvoters have about their downvotes’ effect on your behavior.
As you say, “That’s not how anything works…”
Is that how you talk to the judge in court?
If you actually offered an analysis that demonstrated your expertise you would have probably gotten upvotes instead of downvotes.
Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state.
Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” owned by a private entity.
Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning a digit company owned town. If data storage and/or social media can be viewed as critical digital infrastructure and a private organization provides those services, an argument can and will likely be made that the services are tantamount to a digital company owned town.
As Justice Ginsburg said during oral argument regarding private digital networks, “the point is that these people are being cut off from a very large part of the marketplace of ideas. And the First Amendment includes not only the right to speak, but the right to receive information.”
And as Justice Kagan stated during Packinghan oral argument, "whether it’s political community, whether it’s religious community... these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights.”
Moreover, AWS's behavior may be viewed as an antitrust issue, acting in conjunction with a cartel. A party does not need to have majority market share to function in coordination with other dominate players in order to form a cartel that can manipulate the market.
Also, they may or may not have provided sufficient notice (a contract issue).
Either way, it's definitely relevant to industry and likely to be litigated on appeal following the trial court's ruling (whatever it is).
https://en.wikipedia.org/wiki/Marsh_v._Alabama#Subsequent_hi...
Manhattan Community Access Corp. finds that _public access television stations_ aren't subject to the First Amendment, let alone private web hosts.
I mean, as an attorney, I think it would be kind of interesting to see what happened if the Supreme Court ruled that private web hosts in general, or Amazon in particular, are somehow state actors. It would be one of the most practically disruptive-to-society court decisions I can think of, about as interesting to watch as declaring that all warehouses are now public parks. But it's against both recent precedent and common sense.
They operate under the extremely valuable liability protection granted them in section 230 of the CDA.
If I were to take government funds to build my warehouse, there's a pretty decent case that it is at least a public forum, if not a park.
>“In sum, the financial participation of the City in the Mall’s progress, the arrangements with the City police substation, and the active presence of other governmental agencies in the common areas of the Mall, constitute governmental involvement in the operation of the Mall,” the court noted. Thus, it concluded the mall’s “open and public areas ... effectively function as a public place,” and that mall owners couldn’t restrict distribution of political pamphlets or signature gathering in the mall’s common areas without violating the state Constitution.
Also, General Dynamics absolutely operates under many contractual obligations in which the federal government directly dictates how they shall run their business.
The Marsh line of decisions you're referring to was disposed of upthread. It's dead, Jim. SCOTUS just last year said you can't expect to pretend social networks operate as public squares; you can only claim functions that are normally exclusively the province of governments.
The basis for title 9 regulation is that universities take Federal grants.
Amazon isn't the state.
> Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” owned by a private entity.
Which doesn't apply here, as Amazon isn't a company town/acting in a quasi-governmental capacity.
> AWS's behavior may be viewed as an antitrust issue, acting in conjunction with a cartel.
The court ruled on this, and pointed out that the accusations were factually erroneous.
> Moreover, they may or may not have provided sufficient notice (a contract issue).
The court ruled on this, and sided with Amazon (zero notice in this circumstance). If anything Amazon giving them 24 hours was above what the contract required.
I suggest reading the court's opinion before replying, since it undercuts many/most of the points you've tried to make.
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> Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state.
Amazon isn't the state.
- Correct. My point is that Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning potentially monopolistic behavior. IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town. We'll see! Either way it's very interesting and highly relevant to the industry.
Seems like the core of your argument is that private companies could be subject to constitutional protections if they got too big enough/powerful.
Even ignoring that you've essentially invented a new interpretation of US law/ignored all existing precedent, the fact that AWS (32% market share) isn't a monopoly by either common definition or as defined by federal law completely undercuts even such a novel legal theory.
So you're on the outskirts of both law and basic facts here.
i) Antitrust - AWS's behavior may be viewed as an antitrust issue, acting in conjunction with a cartel. A party does not need to have majority market share to function in coordination with other dominate players in order to form a cartel that can manipulate the market. There's case law concerning market manipulation, access to industry and consumer protection issues where parties didn't need to directly coordinate to be considered a cartel.
ii) Practical dependence on service providers for access to critical digital infrastructure. To what extent do we depend on particular services for participation in society and the marketplace will influence the analysis. At what point does a data service provider begin to resemble a common carrier (i.e. cable, phone or internet provider) and in what context would common carrier laws apply?
iii) Contract issues - A few of the foreseeable issues include sufficient notice, contract breach, degree of harm (irreparable harm?), performance obligations.
In reality they will be able to do neither thing, because we are all aware that Twitter is not in fact worried about Parler, and that Amazon could give 3/5ths of a flying fuck whether Twitter is worried about Parler regardless. It's a fantasy which has taken on a cloak of plausibility because we have other antitrust concerns about Amazon. But that cloak will not do Parler any good in this trial, nor will our other entirely reasonable concerns about tech consolidation.
Similarly, the judge didn't so much poke holes in Parler's contract claims so much as singlehandedly demolish them, pointing out that Parler's claim about their rights under Amazon's contract were directly contradicted by the very next paragraph after the last one they cited in their complaint.
It would be helpful if you could acknowledge the ruling we're commenting on rather than continuing to argue as if this was entirely abstract. We have some (imperfect) authority to rely on now, in the form of today's ruling.
Additional briefs following the TRO, replies, nor responses have been filed.
There has been no discovery, no fact finding, no expert witnesses, no oral argument, no jury trial and no opinion. The case has not been adjudicated by the District Court. It has not reached a stage where it can be appealed to the Circuit Court and it certainly has not reached post appellate petition for cert to the Supreme Court.
It's a short document! It's well written! I recommend it.
Further: some of what you said upthread is contradicted by facts now acknowledged by the court. There may be some barely-colorable argument about antitrust or contracts of adhesion or something, but there is not in fact a colorable argument that Amazon was required to give notice to Parler before terminating them for violation of their AUP; that's in the plain language of the contract, which is on the record in the case, but is also the easily-downloaded AUP a Google search will provide you. Your arguments would be more credible if they acknowledged those facts, rather than implying that they were somehow still up in the air.
Well, neither was Standard Oil by that definition.
Of course, we already know how to solve the problem of companies having too much leverage due to owning too big verticals - namely to break them up. Not to institute everything-goes rules.
Courts have never as far as I can find used antitrust on an actor controlling a market at the low level Amazon has here. Can you find such a case?
Correct, but as part of the TRO process, the court is asked to view the merits of the case given what it knows, as part of the determination of granting a preliminary injunction is whether the plaintiff is likely to succeed on the merits.
The courts opinion, quite plainly, is that Parler is unlikely to succeed on the merits:
> In short, Parler has proffered only faint and factually inaccurate speculation in support of a Sherman Act violation.
> Parler has not denied that at the time AWS invoked its termination or suspension rights under Sections 4, 6 and 7, Parler was in violation of the Agreement and the AUP.
> Parler has failed to allege basic facts that would support several elements of this claim. Most fatally, as discussed above, it has failed to raise more than the scantest speculation that AWS’s actions were taken for an improper purpose or by improper means.
> IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town.
This argument will fail, for reasons I outlined in a previous comment: https://news.ycombinator.com/item?id=25781560. To briefly reiterate: Marsh v. Alabama concerned a privately owned town using state force (e.g. police) to enforce trespassing law.
But nothing about those rulings prevents the town from putting up a fence and a gate, and banning people from re-entering.
Twitter (and AWS) have a fence and a gate, and a guard who checks your ID anytime you try to enter the area.
How on earth is Amazon kicking them off "monopolistic behavior"? There are literally thousands of hosting providers in just about every country on this planet. Parler was quick to point out none of their infrastructure is in any way tied to Amazon.
The contrary is the case here. If anything, AWS is helping its competition by giving them Parler's users.
While the former has some lofty language about central social media has become in society, it's still a decision about state action.
Marsh seems like a reach as well - PragerU tried that and it didn't work. I'm not convinced Parler would fare any better here.
Judge Rothstein stated it quite plainly in today's order: "It is important to note what this case is not about. Parler is not asserting a violation of any First Amendment rights." (Page 2, lines 4-5)
But digital communities do not trap individuals, there is no practical limit except of mental effort to the number of accounts or social media networks a person can simultaneously use. Instead, the costs are borne by the networks themselves, which scales with the number of users.
This is an inversion of the scenario as the public is a passive participant, nothing is forced upon them. This is why I think the argument is not a good fit.
Parler and AWS, as business entities, can only act in their own interests as there is no duty between a corporation and the general public, only their customers through either a uniform or contractual relationship. Wouldn't you agree? It would be dangerous to assume that a corporation has a specific duty to the general public beyond existing customers. That is, AWS only has to deal with Parler, not Parler's customers. That is on Parler.
And I don't think the state enters into this at all.