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This week: Silicon Valley, facing the prospect of legal changes, goes after the president-elect, and conservative-favored social media sites blow up. Plus: copyright laws regarding Instagram are changing.
With antitrust cases swirling and new regulations imminent, the tech industry -- as well as tech reformers -- have a lot riding on the next four years. Both are trying to build influence with Biden.
Tech insiders are off to a good head start: As Recode details, they were among the biggest contributors to Biden’s campaign and will likely try to build off relationships built during the Obama administration. Jessica Hertz, a former GC at Facebook, was named to Biden’s transition team.
The process of wooing the president: Biden campaign staffers have reached out to tech industry stalwarts, while lobbyists have reached out to Biden’s campaign. Those with the best chances appear to be tech insiders who served on his tech advisory committee. Recode reports they have been asked to apply for positions in the Biden administration.
Eric Schmidt is in the running: The former Google CEO may be picked to run a new technology industry taskforce. Meg Whitman, Laurene Powell Jobs and Andrew Yang have also been listed as possibilities for the White House.
Beware a techlash
Given all the lawsuits and bots and election controversies, tech is not embraced the same way as during Obama. Biden has already caught flak for the rumors about Schmidt.
Some leaders in the tech industry fear the activist-led crusades against tech -- from the left and right -- may keep Big Tech out of the White House entirely.
It may be hard to remember, but Hillary Clinton was rumored to favor Sheryl Sandberg for secretary of the treasury if she had won. That kind of tech influence will not happen under Biden. But even anti-tech activists concede the industry will at least play a moderate role on Biden’s team.
When you read articles on the internet you probably notice that publishers -- ranging from blogs to national news agencies -- embed Instagrams and Tweets to help tell stories. The practice has been considered legal since the early days of social media.
But times are a changin. Courts are pushing back against the embed, according to The Intellectual Property Strategist.
The “server” rule had been precedent: In 2007, the Ninth Circuit Court of Appeals essentially ruled that a website could display a copyrighted work from elsewhere, as long as the work was not stored on the website’s server. Because Instagrams and Tweets are stored on the servers of their respective websites and users agree to contractual terms, it was assumed any other website could publish an embed.
District courts aren’t following the server rule anymore: Cases that would have been thrown out earlier have been allowed to proceed, and no special discretion has been awarded to publishers. The reason? For one thing, the courts have noted that parties can still be found in violation of the Copyright Act if they don’t actually possess an image.
Instagram is trending toward more protections of users’ content
Its most recent user agreement states that anyone who wishes to embed a photo must secure rights to publish from the user.
The earlier precedent hasn’t been changed completely because only district courts have been making new decisions. This area of copyright law will likely take a few years to settle.
How do you avoid Facebook and Twitter and their various strategies for moderating and censoring content?
By migrating elsewhere. That’s what conservative politicians are trying, although these new websites may have to face the same legal consequences for questionable content as everyone else in the future.
Ever heard of Parler or Rumble?: They are the conservative-favored versions of Twitter and YouTube. Rumble was expected to have 80 million unique visitors in November, up from 40 million in the summer. The user bases of Parler and Rumble have increased after Twitter and YouTube have tried harder to weed out misinformation, particularly with the baseless conspiracy QAnon.
Rumble has an early-tech strategy: Its CEO told the Washington Post the platform’s moderation plans are similar to what its social media peers had 10 years ago. Obscene content is not allowed, but falsehoods are fair game. “We’re an open platform,” he said.
But what if federal law on content moderation changes?
Both Republican and Democratic politicians want to alter Section 230 and create more specific guidelines under which publishers will have to moderate content. Republicans favor less moderation and Democrats more moderation.
If the latter model prevails as part of a new law, likely all internet websites would be covered. Sites like Parler and Rumble would have to be consistent with their moderation techniques and potentially face consequences for what is published on their platforms -- just like every other site.
Before any legal changes get decided, Big Tech may have to worry about an eroded user base. The rising popularity of Parler and Rumble may influence the legal policies tech companies are comfortable with moving forward.
What else we’re forwarding
Apple gets ahead of antitrust concerns: The company announced it was halving the fee small companies pay to get their apps in the App Store. Major companies like Epic still have to pay in full.
The three big-picture qualities GCs should always remember: Above The Law lays them out: Integration, optimization and maximization.
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Only a few more months until we have a vaccine and a new president and we can all hug each other and put the bad things behind us. Thank you dear FORWARD GC readers for being here, and for being a part of this community. I am grateful to each of you. Be well and be well fed.
Happy (early) Thanksgiving to you all!