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Paramount And CBS Willing To Kiss Trumpās Ass In Exchange For Merger Approvals
from the kiss-my-ass,-then-kiss-my-ass-again dept
For years many press outlets (and contrarian engagement pundits like Matt Stoller) tried to argue that the Trump GOP was now āserious about antitrust reform,ā āreining in corporate power,ā or āholding Big Tech Accountable.ā The argument was that because Trumpism claims to be āpopulist,ā it could be convinced to implement serious anti-corporatist antitrust reform that would help the public.
Of course thatās a naĆÆve, violent misread of how authoritarianism works; kleptocrats are only interested in leveraging government power against corporate power if itās of specific benefit to them personally.
Case in point: Last October, Trump sued CBS claiming (falsely) that a 60 Minutes interview of Kamala Harris had been ādeceitfully editedā to her benefit (they simply shortened some of her answers for brevity, as news outlets often do). As Mike explored, the lawsuit tramples the First Amendment and editorial discretion.
But CBS and Paramount have a planned merger with Skydance pending review by Trump regulators. So, displaying a complete lack of any backbone, theyāre already considering settling the case to get merger approval. Itās embarrassing and feckless, but a perfect example of what corporate mediaās ājournalistic integrityā and the right wingās ādedication to free speechā is going to look like the next four years.
Trumpās pick for FCC boss Brendan Carr had already been threatening CBS with a blocked merger if it dared engage in the act of journalism, causing Libertarian outlets like Reason ā who, letās be clear, usually adore Carrās dismantling of consumer protection standards ā to suddenly discover heās no friend of free speech or logic.
The right wing news ecosystem had been priming this particular pump since last fall, with outlets like the New York Post running articles like this one, claiming that Paramount and CBSās merger with Skydance will be blocked because CBS simply has ātoo much liberal bias.ā
The great joke here is that, as media critics like Parker Molloy have noted, CBS had been responding to authoritarianism by shifting their editorial slant ever rightward for years already (just like the LA Times, NPR, the Washington Post, and many other self serving companies). Their reward for becoming more feckless? More harassment by authoritarians, which is usually how these things work.
Thatās going to be the thrust of Trump āantitrust reformā: kiss the ring and you might get what you want. Challenge Trump and you can expect the authority of the state (or whatās left of it after Trump 2.0 gets done gutting all regulatory independence and firing government workers randomly) to be leveraged against you.
Anybody telling you that Trumpism values free speech or wants to rein in corporate power are confused, bullshitting you, or selling you dodgy supplements. Itās not populism, itās pseudo-populism to try and convince rubes to root against their own best self interests. Itās not āanti-corporatismā or āantitrust reform,ā itās the reckless, inconsistent weaponizing of government power to benefit kleptocrats personally.
For example, Trump and the GOP didnāt saber rattle against āBig Techā because they genuinely care about corporate power or protecting free speech, they did so to bully tech companies away from moderating race-baiting right wing propaganda, a cornerstone of modern GOP party power (lying endlessly is necessary when your real world policies, like broad tax cuts for rich brats or the dismantling of female reproductive rights, are broadly unpopular).
The first Trump administration didnāt sue Time Warner and AT&T to protect consumers, they did so because Rupert Murdoch asked them to. And after T-Mobile lavished the Trump administration with praise and hotel stays, Trumpās āantitrust enforcerā Makim Delrahim worked in his free time to make sure their merger got approved; the FCC didnāt even read about the deal impact before approval.
Yet somehow youāve got āprogressiveā folks like Matt Stoller, and plenty of other people who should know better, constantly insisting that Trumpism is genuine populism that can be leveraged for the greater good.
Itās nonsense; authoritarians are relentlessly self serving bullshit artists, collaboration with them is always a lose-lose scenario, and no matter how routinely companies obey in advance and fecklessly kiss the ring to gain daddyās approval, itās simply never going to be enough.
Filed Under: antitrust reform, authoritarianism, brendan carr, cbs news, free speech, journalism
Companies: cbs, paramount, skydance
Get Ready To Hear About The NBAās Pat Riley If The NFLās Chiefs Go To The Super Bowl
from the cashing-in dept
For those of you who are not football fans, weāre coming up on Super Bowl season. And, yes, that will surely mean that we will eventually do some posting on the ridiculous way in which the NFL enforces the trademark rights it has, and indeed some it does not have, for the Super Bowl. But this is actually about an entirely different trademark, one that will be widely discussed more and more depending on just how deep into the playoffs the Kansas City Chiefs get.
Apparel companies and the like in Kansas City are already starting to both talk and educate themselves about the term āthree-peatā. If the Chiefs were able to win the Super Bowl this year, it would be for the third consecutive year in a row. That is commonly called a āthree-peatā in sports parlance. Less common is the knowledge that the term is actually trademarked and has been for decades.
Itās no secret that Chiefs Kingdom is hoping and even preparing for the Chiefs to pull off a three-peat, but if youāre planning on getting gear with that phrase you may run into trouble. It may come as a surprise to some, but the phrase āthree-peatā and ā3-peatā is trademarked, meaning local businesses wonāt be able to put it on their merchandise.
āI mean what else would you call it?ā asked Greg Lewis, manager for merchandise company Raygun.
Shops like Raygun and Made Mobb, known for their out of the box and unique merch, will now have to get extra creative if the Chiefs score a third consecutive Super Bowl victory.
āWe did not know that three-peat was trademarked so thank you for informing us,ā said Jesse Phouangphet, the Marketing Director for Made Mobb.
So, who has a registered trademark for āthree-peatā and several of its variations? Pat Riley, thatās who. For those of you who donāt follow the NBA, Riley is one of the most legendary coaches and front office executives in NBA history. While coaching the Lakers in the 80s, he trademarked the term, despite acknowledging it wasnāt coined by him, as he was attempting to take the Lakers to their third consecutive title. The Lakers would go on to lose that season, but Riley had his trademark any way. Over the years, his company, Riles & Co., would maintain those trademarks. And, to fulfill the requirement that the marks be used in commerce, the company would produce a handful of hilariously bad products using the phrase.
But the companyās real business is purely in licensing the term whenever some team out there wins 3 titles in a row and they, or third parties, develop merch around the term. When the Bulls three-peated twice in the 90s, ironically by beating Riley teams along the way, Riley cashed in. When the Yankees won the World Series in ā98, ā99, and ā00, Riley cashed in. And, presumably, if the Chiefs win a 3rd consecutive Super Bowl, Riley will attempt to cash in on that, too.
Notably, Rileyās trademark has been challenged several times over the years. And itās not hard to understand why. In the sports world, outside of commerce, the term is fairly ubiquitous to the point of being generic. The fact that relatively few people associate the term at all with Riley or his business drives the point home thatās it does a trash job of being a source identifier. And itās fanciful nature mostly amounts to it being a portmanteau, and not a particular creative one at that. To that extent, itās also fairly descriptive in nature.
Sadly, none of the challenges to date have worked, and the term is still locked up under trademark by Riley. So prepare yourself to hear all about an old NBA executive if the Chiefs make a deep playoff run, as annoying as that will be.
Filed Under: football, pat riley, super bowl, threepeat, trademark
Companies: kansas city chiefs, riley & co.
The Emptiness Of Zuckās Promise To Move āBiasedā Trust & Safety From California To Texas
from the a-bit-o-fact-checking dept
I know that Mark Zuckerberg no longer likes fact-checking, but itās not going to stop me from continuing to fact-check him. Iām going to rate his claimed plans of moving trust & safety and content moderation teams away from California to Texas as not just an obnoxiously stupid political suck-up, but also something that increasingly appears to be just a flat out lie.
As you may recall, as part of Mark Zuckerbergās decision to do away with fact-checking, enable more hatred, and just generally suck up to the Trump administration, there was the weird promise that because California content moderation and trust & safety teams were too ābiased,ā they would be moved to Texas.
Texas is, apparently, famous for its unbiased, neutral residents, as compared to California, where it is constitutionally impossible to be unbiased. Or something.
This was stupid at the time, and in practice, it appears to be absolute garbage. As many people (including us on Ctrl-Alt-Speech) pointed out, Meta already has a large trust & safety team in Texas.
Former Facebook employees say, however, that the move-to-Texas announcement rings hollow. Thatās because Meta already has major content moderation and trust and safety operations in the state. They say the move is nothing more than a blatant appeal to Donald Trump. Facebookās former head of content standards said he helped set up those teams in Texas more than a decade ago.
āThey made a lot of hay of: āOh, weāre worried about bias, weāre moving all these content moderation teams to other places,āā Dave Willner said during a Lawfare panel last week. āAs far as Iāve been able to figure out, that is mostly fake.ā
Three other former Facebook employees who worked on the trust and safety teams in Texas told the Guardian the same. One said many people across Metaās various divisions did trust and safety work in the companyās Austin offices. Another said that many content moderators, including those allocated to the trust and safety teams, have been in Austin for a long time.
So many of the people were already in Texas. What about the folks in California who were told theyād have to move? According to Wired, most have been told the mandate doesnāt actually apply to them.
Last Thursday during a town hall call for Meta employees working under Guy Rosen, the companyās chief information security officer, executives said that no one in Rosenās organization would have to move to Texas, according to two people in attendance. This exempts from relocation employees who work on Metaās safety, operations, and integrity teams, which collectively help enforce the companyās content policies.
The changes also do not affect a portion of Metaās US-based content policy team, which works under chief global affairs officer Joel Kaplan, because many members are already located outside of California, including in Washington, DC, New York City, and Austin, Texas, the employees say. That includes key decisionmakers such as Neil Potts, vice president of public policy. Many of the companyās content moderators are contractors based out of hubs beyond California such as San Antonio, Texas.
So it sure sounds like the big announcement of how content moderation and trust & safety were moving to Texas was a load of garbage. Many of those people are already there.
The whole thing, as expected, was about making a fake public concession to Donald Trump in an attempt to curry political favor.
While Zuckerbergās motivations here seem transparently political, the broader implications remain concerning. Itās especially worrying given how a ton of people are going around falsely claiming Zuckerberg caved to pressure from Biden, while everyone seems to be ignoring the much more blatant act of him actually caving to Trump.
Moving critical trust & safety functions to appease partisan interests sets a troubling precedent. Itās a short-sighted move that prioritizes political expediency over principled policymaking. But thatās the world Mark Zuckerberg has chosen to embrace.
Filed Under: bias, california, content moderation, mark zuckerberg, texas
Companies: meta
Why Google And Apple (And Others) Have No Choice: They Canāt Restart TikTok, They Can Only Fight
from the crossroads dept
Even though the Supreme Court somehow didnāt agree, the ban on TikTok remains unconstitutional garbage for all the reasons weāve discussed: its impact on the platform itself, the impact on its users, and its impact on other service providers that help it work. The corrupt scramble weāve seen to try to keep it going, ever since it went into effect, only provides more evidence for why it was exactly the sort of law the Constitution should have prohibited.
But in the wake of TikTok v. Garland, here we are, with TikTok still basically shut down ā or at least without the partners it needs to work properly. Or protect its users, because as long as itās not in the app stores users cannot get software updates, thus leaving every phone with it installed extremely vulnerable to unpatched zero day exploits. Which, of course, is yet another reason the āProtecting Americans From Foreign Adversary Controlled Applications Actā was unconstitutionally bad policy that never should have been allowed by anyone (as well as very poorly named).
But the Executive Order Trump just issued to forestall the lawās enforcement doesnāt solve the problem. There is still a law on the books that sanctions TikTok, as well as anyone who helps TikTok provide its services. Trump has no authority to set aside the law. Nor does he have the authority to delay its enforcement ā the law articulates a small avenue by which he could, but the criteria that would give him this power has not been met (it would have required TikTok to be much further along with divesting itself).
Instead the Executive Order creates new problems. Because here is Trump trying to claim an unprecedented amount of raw power to decide whether or not to enforce the law. But that lawlessness heās demonstrating can offer no protection from law. It can offer no protection from anything. And Google and Apple and any of the other providers TikTok needs would be fools to pretend otherwise.
Just run the math: Trump wants these companies to be in his debt. From at least some, like Google, heās already extracted at least a million dollars in tithes āfor his inauguration.ā But thereās nothing to limit him from continuing to extract millions more. Meanwhile, if any of these companies serve TikTok they will be staring down a sanction of potentially more than 500 billion dollars (the penalty, especially for the app stores, is $5000 per TikTok user, and even for the other providers itās still $500 per user). So if the way to avoid that penalty is to depend on Trumpās arbitrary benevolence, Trump could extract up to $499,999,999,999 from each of them, and thatās just to maybe avoid them getting in trouble for violating this law. Stay tuned for what other laws get put on the books next, especially now that the constitutional limits on them have been so relaxed.
At that point it would have long been more cost effective to just help elect Democrats and pay taxes like a normal company hoping to profit from Americansā business.
Trumpās promise not to enforce is also as void as it is arbitrary and autocratic. As it is, the text of the executive order, at Section 3(c), instructs that no one should rely on it:
This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
It may be boilerplate that shows up in a lot of executive orders, but itās still sitting there, in this one, having effect.
As a result the only choice these companies have is not whether to serve TikTok again or not; that choice got made for them by the stupid law, which decided for them that they cannot. Their only choice is whether to silently obey the law, or to fight it.
This law is jawboning and affects its own interests in a way that even Trump himself has recognized is unconstitutional. As has the Supreme Court. Furthermore, the extraordinary, distorting penalties also present their own constitutional concerns, which is an issue the courts have yet to address in this context.
In the face of this unconstitutionality the companies should have fought already, but with this actual injury to the companies now so proximate and likely, they probably still can, or at least plausibly try. And they should. Not only would doing so be in their own immediate legal interests, but their business ones as well. Because as long as the public sees these big tech companies as being in Trumpās pocket, no one will trust them again. But government contracts aside, their businesses still depend on that public trust, whether by customers, investors, or other regulators still able to sink their own teeth into them. Itās time to earn that trust by saying no to any of these abuses of power, for their sake and everyoneās.
Filed Under: donald trump, executive order, intermediaries, liability
Companies: apple, bytedance, google, tiktok
The Fake Government āEfficiencyā Agency Known As DOGE Already Faces Multiple Lawsuits
from the this-is-why-we-can't-have-nice-things dept
One of the many new executive orders signed by President Donald Trump on Monday was the long-hyped creation of the Department of Government Efficiency (DOGE). DOGE is portrayed as a sort of government efficiency and innovation office, but itās primarily flimsy cover for the extraction class as they eliminate corporate oversight, consumer protection, labor rights, and the social safety net.
The program was supposed to be spearheaded by two of the countryās biggest bloviating weirdos, Elon Musk and Vivek Ramaswamy. Ramaswamy is already leaving the agency because he purportedly wants to take a shot at becoming the Governor of Ohio (though other reports suggest he somehow managed to annoy most of the people at a fake government agency already filled with annoying people).
DOGE has other issues already as well. While itās not a real government agency, it does appear to qualify as a federal advisory committee (FACA). And FACAs do have documentation, transparency, and other rules they have to follow, including producing meeting minutes, filing a Charter with Congress, having āfairly balancedā ideological representation, and maintaining some semblance of public open access.
Not surprisingly, Muskās fake government efficiency agency has allegedly done none of those things, resulting in several new lawsuits that may or may not result in any reform of note.
One of the lawsuits was filed by the The American Public Health Association, the American Federation of Teachers, Minority Veterans of America, VoteVets Action Fund, Center for Auto Safety, and CREW. It calls DOGE a āshadow operation led by unelected billionaires who stand to reap huge financial rewards from this influence and access.ā
āPlaintiffs and those they represent believe that the government should work for the American people and be transparent, efficient, and effective ā and that the government can and should do better,ā the complaint states.
Another lawsuit, filed by Public Citizen, filed in conjunction with the American Federation of Government Employees, also alleges the fake government agency is playing fast and loose with government rules.
Yet another lawsuit, filed by National Security Counselors, also points out how the setup of DOGE seems wholly disconnected from how the government is supposed to work.
Itās clear DOGE supporters (including lots of corporate backed deregulatory āinnovationā think tanks) want to have their cake and eat it too. They want DOGE to be respected as a serious thing, while simultaneously having to do none of the serious things adults have to do to be taken seriously in the world of government policy:
āSam Hammond, senior economist at the Foundation for American Innovation, who has been supportive of DOGEās efforts, said the initiative will primarily implement ideas within the executive branch and White House, which he said would exempt it from FACA requirements. If Trump does treat DOGE as a FACA, then it should follow the required reporting rules. But for now, he said, āDOGE isnāt a federal advisory committee because DOGE doesnāt really exist. DOGE is a branding exercise, a shorthand for Trumpās government reform efforts.ā
When announced, the press went out of its way to frame DOGE as a very serious thing. Of course itās mostly a vehicle for access (read: corruption). And a way to put a lazy shine on what will be a brutal and very harmful dismantling of federal consumer protection, labor rights, environmental law, and social safety programs, which will result in very real suffering at unprecedented scale.
Musk himself admits this suffering is coming, but hopes he can bedazzle a lazy press with enough bullshit that they softsell and downplay the broad, percussive looming harms to the American public. Meanwhile fake government official Musk is already walking back claims that his fake government efficiency agency would drive some two trillion in overall government savings.
Youāre supposed to ignore the fact that this is because the stuff usually most in need of cutting ā fat and purposeless corporate subsidies (see: the Starlink kerfuffle) and the bottomless well of military and intelligence overbilling ā are precisely the sort of stuff billionaire extraction class parasites enjoy glomming on to. The stuff deemed āinefficientā is the stuff that doesnāt benefit them personally.
Filed Under: department of government efficiency, doge, efficiency, elon musk, government, lawsuits, subsidies, transparency
The TikTok Ban Was Jawboning, And Yet Another Example Illustrating Why Jawboning Is Bad (And Unconstitutional)
from the it-was-right-there dept
This post was written on Sunday. By the time you read it there may have been 12,492 further unconstitutional TikTok-related hijinks since then, but because this particular kind of unconstitutional violation might well rear its ugly head again, if not with respect to TikTok then with respect to something else, itās still worth pointing out the problem, even if how it applies to TikTok may have been obviated by even stupider deviations from the Constitution since.
There was an argument left on the table in the TikTok briefs at the Supreme Court: The ban, among its many unconstitutional flaws, was also unconstitutional jawboning. And Supreme Court precedent from just last year explained why.
In NRA v. Vullo the Court made clear that the government canāt go after a speaker it doesnāt like by pressuring an intermediary the speaker needs to deal with as a way of sticking it to the speaker. And yet, with the TikTok ban, thatās exactly what Congress did: impose liability on the intermediary services TikTok needs to deal with to run if they help TikTok run.
Just look at how the statute is written, and where the prohibition is. Right there, in its first main provision at Section 2(a) (and Section 1 is just the short title of the law), hereās what the law says:
It shall be unlawful for an entity to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application by carrying out, within the land or maritime borders of the United States, any of the following:
And then it describes what these other non-TikTok third parties cannot do, namely host the app in its app stores:
(A) Providing services to distribute, maintain, or update such foreign adversary controlled application (including any source code of such application) by means of a marketplace (including an online mobile application store) through which users within the land or maritime borders of the United States may access, maintain, or update such application.
Or provide any sort of server support:
(B) Providing internet hosting services to enable the distribution, maintenance, or updating of such foreign adversary controlled application for users within the land or maritime borders of the United States.
It is this unconstitutional statutory construction that, ironically, is why Trump canāt easily fix this mess without making a bigger one. Because even if he promises not to go after TikTok, he still hasnāt solved the problem because the lawās teeth are not just biting TikTok but anyone helping the app work. And they are sharp teeth, threatening billions in penalties:
An entity that violates subsection (a) shall be subject to pay a civil penalty in an amount not to exceed the amount that results from multiplying $5,000 by the number of users within the land or maritime borders of the United States determined to have accessed, maintained, or updated a foreign adversary controlled application as a result of such violation.
So in the cross-hairs of this law are Google and Apple, which host the app in their app stores,* but also anyone else who provides any sort of services, like perhaps Amazon, if the app is using their cloud services, and potentially CDNs that help handling the data load, and possibly services that help with transmission like backbone providers and wireless telcos if its services are used to connect end users to the service (even if this law omits them with its focus on āhosting,ā and itās not entirely clear that it does, the next law could easily catch them)ā¦ The degree of corrupt abdication of his obligation to enforce the law as Chief Executive of the United States needed to save TikTok is significantly greater than if he just needed to universally exempt TikTok from this law, because heād have to exempt them all.
It does, of course, beg the question as to why any of these affected entities did not sue to challenge the law themselves, because the law is about them. And this sort of impermissible jawboning is going to keep affecting them as intermediaries, again and again, until there is finally enough pushback to take this unconstitutional weapon out of the governmentās regulatory quiver.
But that they even needed to is another reason why jawboning is bad. The government put these companies in a position they were not supposed to find themselves in, where they couldnāt freely exercise their own rights as service providers because the government didnāt like a user of their services. And to vindicate their own right they would have to expend the costs associated with litigation as well as the risk of painting yourself as a target for a government that has shown itself to be vindictive to technology platforms it doesnāt like. It was probably a lot more expedient just to refuse service to TikTok and somehow hope that the government does not start to pick off, one by one, everyone else they provide service to with other laws laterā¦
Of course, given the other constitutional problems facially manifest in the TikTok ban, they may have thought it unnecessary, as surely TikTokās challenge should have been enough. And while they probably should have shown up as amici to help, and in doing so point out this jawboning problem, the rushed briefing during the holidays may have well made such participation in the litigation, at least at the Supreme Court, functionally impossible.
Perhaps TikTok should have raised the jawboning issue itself ā as it is it doesnāt seem like the NRA v. Vullo case was even cited in its Supreme Court briefs ā but in its briefs it only had so many words it could include and so much time to write them. And the arguments it did bring to bear should have been availing on their own.
But maybe itās just as well: while itās bad enough that the Court has backed off of supporting the First Amendmentās protections in all the ways it just did, it would be even worse if it had also backed off of its protective precedent in this context too.
* We also should be concerned about the cybersecurity risk that comes from pressuring app stores to disable distribution of app updates, leaving users to run only outdated software on their phones, but thatās a subject for another postā¦
Filed Under: 1st amendment, free speech, jawboning, tiktok ban, vullo
Companies: apple, bytedance, google, tiktok
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