US Supreme Court leaves protections for internet companies unscathed
reuters.com
reuters.com
But the Gonzalez v Google case taking direct aim at section 230 was just such a horrible vehicle that there was no point in even tackling the question it was supposedly raising (and which everyone was ignoring in favor of attacking or defending 230 outright). Even counsel for plaintiff there admitted that there was no point deciding anything if they didn't also win in Twitter v Taamneh, and Twitter v Taamneh was a real stretch for plaintiffs.
I would not argue at all that is what they did. There are remarkably few statutes about fair use specifically and as a doctrine it is a loose patchwork of precedence and principles.
If legislatures were to pass actual legislation for them to interpret that would be a different thing.
Its worth noting that the reason the fair use statutory language is the way it is is that it was largely a codification of the thn-existing case law on Fair Use as a Constitutional (stemming from the First Amendment) limit on the copyright power.
> If legislatures were to pass actual legislation for them to interpret that would be a different thing.
Congress isn’t really interested in expanding Fair Use beyond the Constitutional minimum, though.
Some of the dissenting opinion in these cases seems to be partly on the grounds of this is Andy Warhol (or Roy Lichtenstein, etc.) we're talking about here so their work is obviously important and transformational--in a way that my applying some Photoshop filters clearly isn't.
However, the court essentially boxed itself into weighing in only one the meaning of factor one, so it tries to reach the decision by half-importing factor four (the degree to which it substitutes the original) into factor one analysis. Furthermore, it ties itself into a knot to argue why Andy Warhol's use in the original prints was transformative and overall fair use, but the use in the newspaper article wasn't transformative.
The dissent manages to be even worse by, as you point out, essentially arguing that everything Andy Warhol does deserves to be fair use because it's Andy Warhol. Oh, and taking as many potshots at the majority opinion as is possible. As bad as the majority opinion was, the dissent is even worse.
That's not how I read it. The gist I took was that Andy Warhol deserves fair use because the art establishment has consistently viewed his works, the Prince piece included, as revolutionary. And to state the bloody obvious, if his work was not transformative, it never would have been seen as revolutionary.
that is not at all obvious to me--what is revolutionary in Warhol is not the art but the way people see it, like found art. but if you "found" the art in someone else's comic, and aren't substantially changing the actual image--the actual appearance of the work, the only part that could reasonably be described as being ripped off from someone else... it can be revolutionary without having meaningfully transformed the original, just the way people see it.
disclaimer: I don't have a lot of time for that kind of art, which no doubt biases me.
I think it is quite optimistic, if not even downright naive to assume the text matters at all for such protagonists.
If they were concerned about such things they would hold themselves to higher ethical standards than other courts, not lower ones. If my countries supreme court behaved that way, I would expect weeks of protest till the court takes care of that.
I am not an US citizen, but the looking at the way the SCOTUS has both been conducting itself I am very worried about the state of democracy in the US. To someone outside the US it is already stunning that you can elect governments or political leaders that have the minority of the vote, but them then filling three live time supreme court positions?
Who thought that was a good system? They must have smoked the bad stuff.
> The author appears to have an implicit bias against the US Supreme Court, its ethical standards, and the overall American democratic system, particularly in terms of the process for electing government officials and lifetime Supreme Court justices.
That seems pretty good. I should turn this into a browser widget.
Calling this a "bias" isn't the flex you think it is and probably tells more about your own world view than about mine.
As an admitted non-American, writing forcefully about a branch of our government that you don't understand, and essentially advocating for dramatic changes to our constitution to reign in this branch of government that you don't understand but do not like, it is transparently obvious you have some bias such that even ChatGPT can detect and characterize it.
Why are you so hung up about the word 'bias'? Just own it. Americans almost certainly criticize your country and its government.
For all it's faults, I would argue the Supreme Court has worked reasonably well - because the justices do not seek elections and do not owe loyalty to their appointees. And anything they do could be relatively easily undone if the US could ever be bother to pass laws again.
In a way, you can almost think of their decisions as open-source. All of their arguments are written down and you can actually read their reasoning for yourself (as opposed to some of the dire interpretations offered by journalists). There are some notable exceptions (Alito and Thomas), but for the most part you can read their arguments for yourself and see that most of them are pretty professional and fair-minded.
> I think it is quite optimistic, if not even downright naive to assume the text matters at all for such protagonists.
If anything, the newest court is doing the opposite of what you are worried about. They are willing to throw out established precedence where there is not written law. In a way, the new court is leaning more democractic to a fault.
The Legislature and Executive can pass a new law that overrides a decision that ruled on existing law.
This is pretty directly refuted by Dobbs. Roe v. Wade was not ambiguous and was a settled matter of constitutional law until the new court decided they didn't like it.
I don’t like the decision here as well for political reasons, but if you read the arguments the Supreme Court is just saying that abortion law is a state issue not a federal one. Which limits the power of the federal government. Which is good.
Looking at how Southern states seem to be competing to out-fascist each other right now, devolving everything to states' rights seems like a bad idea. If it were entirely left up to the states, half of them would be hunting gays for sport. Having common standards as a culture enshrined in law and a central government strong enough to protect and enforce those standards also seems good. It's weird that this isn't even up for debate where gun rights are concerned but bodily autonomy, rights to privacy and free speech are all up in the air.
I don't like the results of the Dobbs decision either. But the root cause of the problem was always legislative, not judicial. When the legislature fails to make the laws clear, anything that ends up in front of the Supreme Court is going to be a toss-up. Tell your members of Congress to do better.
One feature of the system, not a bug, is the protections against the majority riding roughshod over the minority.
> They must have smoked the bad stuff.
They did an incredibly good job. It's still the best Constitution.
I say this while still disagreeing with a lot of the decisions of the Supreme Court.
[citation needed]
Doesn't make it the "best" but on the other hand you can't achieve that kind of longevity by "smoking the bad stuff."
No it hasn't. The oldest written national constitution in continuous effect is that of San Marino, from 1600 (unless you count some charters that usually aren't treated that way, like Magna Carta). And plenty of nations survive just fine with traditional rather than integrated written constitutions, which are something of a modern fad, which is why none of the longest continuous constitutional systems have a written constitution in the first place.
Okay, oldest constitution for a country bigger than a football stadium.
Like I said, doesn't make it "best" but clearly has something going for it.
The claim that the US has the oldest constitution, even with the caveats necessary to exclude older written constitutions, is simply false; countries without single integrated written constitutions still have constitutions, and many of those are much older in continuous operation than the US constitution (or the US).
At the risk of sounding snarky, this line has become a major eye roller for me. Are there any democracies on Earth, by this definition?
People today think of the US as one "country" but when its Constitution was written it was much closer to the EU: an alliance and economic free trade and free movement area with basic shared rules.
The vote to create the United States was done by unanimity of Member States not by a popular vote.
Is the EU a "democracy"?
Even within states since people are concentrated in urban areas, it’s easy for the minority to engage in gerrymandering so that the rural population voting power is more than urban voters.
That’s not to mention the fact that even in conservative states, on singular issues like abortion, drug legalization and the right for felons to vote, the population runs to the left of the legislation. When those initiatives are put on the ballot, they win. So the legislators in those states are making it harder for initiatives to get on the ballots.
You can look at states like Texas that are taking more power out of the hands of the city.
https://thehill.com/homenews/state-watch/4007362-texas-passe...
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."
As mentioned, the definitions of republics and democracies have blurred over the years as people often use them interchangeably. Republics have representatives. Just as the ancient Roman Republic did, with its famous Senate. Pure democracies run on majority rule and direct voting on laws.
https://constitution.congress.gov/browse/essay/artIV-S4-1/AL...']
The Islamic Republic of Iran is a republic, not a denocracy.
The US is a republic that notionally is both democratic and federal.
> The Executive, Legislature, and Judicial branches form a triumvirate, which is a stable form of government.
No, they don't, because a tirumvirate consists of three people, and triumvirates are notoriously unstable. (The two ruling Roman triumvirates from which the term is generalized having lasted less than 15 years combined.)
It works for the US. Also the Soviet Union - the Party, the KGB, and the Army. The reason for stability is one can block the other two. The Constitution is full of checks and balances to this end.
No, it doesn’t, because, again, the US doesn’t have one.
Some people try to distinguish between representative democracy and direct democracy but since the latter is rare, democracy usually just means the former.
Edit: I guess republic is particular from of democracy, plus non-monarch.
Which forms? What transactions?
I'm sure you're referencing something real, but my search isn't turning up anything https://www.google.com/search?q=supreme+court+forms+transact...
It's so shitty that the court has so persistently been such IP maximalist, in so so many ways.
While Section 230 was asserted among the defenses in the case, the Supreme Court decision didn’t address it at all, instead finding the underlying claim failed as a matter of law, making Section 230 immunity irrelevant. The headline saying that it left 230 protections unchanged is technically true, in the same sense as one saying that it left, say, the scope of liability under the Espionage Act in place would be.
But its also misleading clickbait, for much the same reason as one saying that it left, say, the scope of liability under the Espionage Act in place would be.
It's true the finding wasn't "about" section 230, but to say the case wasn't about 230 is missing the point.
When YouTube says "You may like this terrorist recruitment video" that is undeniably their own speech and shouldn't fall under 230.
However... Isn't it a little bit of the same thing when a tech company says "This isn't a illegal in any way, but we're going to use our intentionally ambiguous TOS to remove it".
Aren't the things you say similar to the things you chose to prevent from being said?
Is a forum showing you the most upvoted (reddit's /top) or the most recently commented (phpBB), or some combination (HN and reddit's /hot) and saying "you may like {{most popular thing}}" the site's speech or the user's? Is it only the site's speech if the recommendation is personalized? Or if the recommendation is a single item, and not a list?
The court's 230 interpretation today[*] seems to be that suggesting or promoting user-content isn't itself site content, which is fairly in-line with the original intent of the law (that showing, and even ordering user-content isn't site-content).
[*]: Which as others mentioned, is totally independent of this ruling.
By declining on procedural grounds, it signals they are not especially interested in evaluating Section 230 in a broader scope.
This wasn’t decided on procedural grounds, but on substantive grounds. The fact that it was decided on a different substantive question than some people wanted it to be doesn’t make it procedural.
Now suppose they want to avoid tackling the question of the underlying liability. Well, if the defendants would be immune under Section 230 anyway then that question would be irrelevant and they could avoid answering it. But that's not what they did.
As much as people complain about activist judges on the bench, SCOTUS does a pretty good job, most of the time, of following the evolved purpose of their Court to rule as narrowly as possible to resolve the open question of law. This case specifically was ill-designed to probe 230 because the underlying claim of culpability was cobweb-thin. And the Court is guided by the arguments made in front of them; while plaintiffs certainly wanted this to hinge on 230, the defense made a very reasonable case based on "In what parallel universe are networks considered to have culpability because they made money indirectly by being the middlemen for someone else's recruitment video?" Might as well sue Goodyear for making the tires that went on the van used in the attack.
There are other cases in the pipeline that will test 230 more directly than this one. This one doesn't even get to the point where questions of S230 law are under scrutiny because the civil tort law used didn't apply.
I pretty much agree with you, even though I think several of the justices are partisan hacks/stooges. The fortunate thing is that, they're mostly one or two-issue hacks, who seem to believe in their hearts that they are and should be competent professionals in all other matters, and who are keenly aware that they shouldn't just blow things up.* This is bad for those affected by those certain issues (we all know which ones), but thankfully this branch of government isn't populated entirely with careless, clueless people like the ones who are slowly taking over the other branches.
* This makes me wonder if it's almost 100% due to the lack of the need to pander to the extremists who got them in. I suspect that if they ever needed to stand for re-election, the radicalness of SCOTUS decisions would get ever wilder.
That was among the concerns that led the framers of the Constitution to make the SCOTUS a lifetime appointment. It's designed to be a brass ring that, once you grab it, nothing should be influencing your rulings but your own heart and mind. The constraint upon that power is that the Court's initial position is the weakest relative to the other branches: any ruling they make that doesn't rest directly on the Constitution can be undone with a change of the law, and nobody shows up in the criminal side of their Court unless the executive decides to try to enforce a law.
Remember when half of Oklahoma was supposedly given away?
> After a judge dismissed the lawsuit, the San Francisco-based 9th U.S. Circuit Court of Appeals allowed it to proceed, concluding that Twitter had refused to take "meaningful steps" to prevent Islamic State's use of the platform.
The 9th Circuit was way off. The judge dismissed the case, they revived it, and then got overturned by a unanimous Supreme Court decision.
So what? People can host their own content. I'm not arguing either way, but to suggest the viability of a particular business model should influence the decision isn't right.
Either treat them like common carriers and make them host everything without moderation, or hold them liable for it. Or is my thinking obsolete somehow?
How do they do that? It's services all the way down.
[0]: https://www.techdirt.com/2020/06/23/hello-youve-been-referre...
A publisher vets every single post, because the cost of publishing any one thing is fairly high. To my mind, the problem with Google, Twitter, Facebook, etc is not that they moderate content, its that they've been allowed to grow so large as to meaningfully impact the world with their moderation.
This destroys the modern internet.
I really don't understand the opposition to moderation. 230 doesn't encourage monopolies; if people don't like the moderation, they can switch to other another service or, as you put it, host their own.
If you make a bomb threat over a verizon line, verizon won't be held liable for the bomb threat
Courts shouldn't decide cases based on the viability of a business model, but we can certainly write laws for those reasons.
If social media companies were guilty, then so is every newspaper that spreads news of terrorist events, supposedly providing a platform for terrorism (which would also be the argument in cases of eg mass shooters that seek attention, copying prior mass shootings that are heavily publicized by the press/media/news). It's an excellent outcome that they're not guilty in this case. I'm glad to see the justices so relatively united.
If a newspaper puts up a dark corner of their website that gives people labyrinthine access to all of the submissions that they decided not to publish, are they no longer liable for the content they post and promote on their main site?
You mean a comments section?
The line is different online vs in print, because of Section 230, whose scope is pretty explicit...
> If a newspaper puts up a dark corner of their website that gives people labyrinthine access to all of the submissions that they decided not to publish, are they no longer liable for the content they post and promote on their main site?
Are you under the impression that the main content of newspapers (either in print or on the web) is third-party submissions that the newspaper chooses to print or not but does not actively assign and pay people to write, and/or actively purchase for publication?
Also, there are sites like Forbes that have editorial articles but also have blogs posted by users. These do get confused on Forbes.
It is so stupid that no one at the time even considered it.
For example if a hypothetical billionaire acquirer of a social media site wanted to (implicitly) promote a cryptocurrency project, he could shadowban negative comments against the project, leaving comments in favor of the project to dominate on the site. At the same time, Section 230 would still shield his company from liability for those comments in favor of the project. This creates a situation in which the social media is in essence promoting the project, but in a roundabout way that shields them from liability. I can see this being especially problematic as it is applied to influencing elections.
In my opinion, Section 230 protections should come with some obligation to respect the principles of free speech.
Section 230 is quite short and (to my mind) somewhat vague, which I think lends itself to different understandings. But I don't think it could be reasonably interpreted to mean that online publishers cannot moderate user content as they see fit.
Loopholes in the law should be fixed by the legislature, not by misinterpreting the law as it is written.
The interesting part isn't how the Court decided but how it decided. It didn't address Section 230 at all and only made a very narrow ruling that isn't really applicable beyon dthis case.
The Court is, and always has been, political. Skepticism remains about the safe harbor provisions of Section 230 in the conservative wing of the court so it's no surprise that this ruling is narrow so as to not set precedent.
This is a big claim. Do you have any evidence to support it?
In the wake of someone trying to prove the same for Congress, it was conclusively shown that the opposite was true:
https://www.vox.com/2016/5/9/11502464/gilens-page-oligarchy-...
I see several opinion pieces making the same claim, but no actual studies of their decisions.
More importantly: the concern can't and shouldn't be the income of the parties involved in a suit, but who is right and who isn't.
The referenced Twitter opinion: https://www.supremecourt.gov/opinions/22pdf/21-1496_d18f.pdf
The plaintiffs sued because ISIS killed their family members and they were specifically trying to prove collusion between Twiiter and ISIS (and YouTube and ISIS). The facts they declared they would present did not, SCOTUS ruled, meet the definition of collusion as per the law. In short, even if Twitter (and YouTube) did make money off of ads run next to ISIS recruitment information, that's not material support of terrorism. It'd be a bit like someone trying to sue CNN for supporting the invasion of Ukraine because they screwed up and ran that Applebee's ad against footage of Kyiv under siege.
So the case doesn't particularly test 230 very thoroughly because the underlying civil claim ("Twitter is liable for my loved one's death because at some point they made money off an ad run next to ISIS recruitment material") has no legal merit.
But yes, they failed to show that YouTube/Twitter "aided and abetted and conspired with ISIS".