We’ve written a ton about Taylor Swift’s various adventures in intellectual property law and the wider internet. Given her sheer popularity and presence in pop culture, that isn’t itself particularly surprising. What has been somewhat interesting about her as a Techdirt subject, though, has been how she has straddled the line between being a victim of overly aggressive intellectual property enforcement as well as being a perpetrator of the same. All of this is to say that Swift is not a stranger to negative outcomes in the digital realm, nor is she a stranger to being the legal aggressor.

Which is why the point of this post is to be something of an open letter to Her Swiftness to not listen to roughly half the internet that is clamoring for her to sue Donald Trump for sharing some AI-generated images on social media falsely implying that Swift had endorsed him. First, the facts.

Taylor Swift has yet to endorse any presidential candidate this election cycle. But former President Donald Trump says he accepts the superstar’s non-existent endorsement.

Trump posted “I accept!” on his Truth Social account, along with a carousel of (Swift) images – at least some of which appear to be AI-generated.

One of the AI-manipulated photos depicts Swift as Uncle Sam with the text, “Taylor wants you to vote for Donald Trump.” The other photos depict fans of Swift wearing “Swifties for Trump” T-shirts.

As the quote notes, not all of the images were AI generated “fakes.” At least one of them was from a very real woman, who is very much a Swift fan, wearing a “Swifties for Trump” shirt. There is likewise a social media campaign for supporters from the other side of the aisle, too, “Swifties for Kamala”. None of that is really much of an issue, of course. But the images shared by Trump on Truth Social implied far more than a community of her fans that also like him. So much so, in fact, that he appeared to accept an endorsement that never was.

In case you didn’t notice, immediately below that top left picture is a label that clearly marks the article and associated images as “satire.” The image of Swift doing the Uncle Sam routine to recruit people to back Trump is also obviously not something that came directly from Swift or her people. In fact, while she has not endorsed a candidate in this election cycle (more on that in a moment), Swift endorsed Biden in 2020 with some particularly biting commentary around why she would not vote for Trump.

Now, Trump sharing misleading information on social media is about as newsworthy as the fact that the sun will set tonight. But it is worth noting that social media exploded in response, with a ton of people online advocating Swift to “get her legal team involved” or “sue Trump!” And that is something she absolutely should not do. Some outlets have even suggested that Swift should sue under Tennesse’s new ELVIS Act, which both prohibits the use of people’s voice or image without their authorization, and which has never been tested in court.

Trump’s post might be all it takes to give Swift’s team grounds to sue Trump under Tennessee’s Ensuring Likeness Voice and Image Security Act, or ELVIS Act. The law protects against “just about any unauthorized simulation of a person’s voice or appearance,” said Joseph Fishman, a law professor at Vanderbilt University.

“It doesn’t matter whether an image is generated by AI or not, and it also doesn’t matter whether people are actually confused by it or not,” Fishman said. “In fact, the image doesn’t even need to be fake — it could be a real photo, just so long as the person distributing it knows the subject of the photo hasn’t authorized the use.”

Please don’t do this. First, it probably won’t work. Suing via an untested law that is very likely to run afoul of First Amendment protections is a great way to waste money. Trump also didn’t create the images, presumably, and is merely sharing or re-truthing them. That’s going to make making him liable for them a challenge.

But the larger point here is that all Swift really has to do here is respond, if she chooses, with her own political endorsement or thoughts. It’s not as though she didn’t do so in the last election cycle. If she’s annoyed at what Trump did and wants to punish him, she can solve that with more speech: her own. Hell, there aren’t a ton of people out there who can command an audience that rivals Donald Trump’s… but she almost certainly can!

Just point out that what he shared was fake. Mention, if she wishes, that she voted against him last time. If she likes, she might want to endorse a different candidate. Or she can merely leave it with a biting denial, such as:

“The images Donald Trump shared implied that I have endorsed him. I have not. In fact, I didn’t authorize him to use my image in any way and request that he does not in the future. On the other hand, Donald Trump has a history of not minding much when it comes to getting a woman’s consent, so I won’t get my hopes up too much.”

Like far too many legislators in far too many states, Tennessee’s lawmakers have jumped on the book banning bandwagon. For years, public libraries and school libraries were stocked at the discretion of librarians and largely operated without a lot of interference from state governments. While attempts to ban certain books happened now and then, there was never a concerted effort to remove wide swaths of literature from public library shelves.

Now, it’s just the sort of thing that happens multiple times on a daily basis. And the number of book challenges and book ban attempts continue to increase exponentially as idiots push their personal agendas using the government’s power to control what content the public has access to.

The law passed by the state legislature doesn’t actually ban books from school libraries. But no matter what the text says, that’s obviously the end goal. (h/t BookRiot)

Passed earlier this year, the bill amended the state’s “Age-Appropriate Materials Act,” signed into law by Republican Gov. Bill Lee in 2022, which, according to the ACLU of Tennessee, requires schools to maintain and post lists of the materials in their libraries and to evaluate challenged materials to determine whether or not they are “age-appropriate.”

So, now every Tom, Dick, and Karen can simply challenge a book and force librarians to review the content to see whether or not it’s “age-appropriate.” The initial bill didn’t even bother to define the few terms it bothered to use to describe the age-appropriateness of content, much less provide librarians with guidelines for handling challenges and/or eventual book removals.

The “fixed” version isn’t much better. While it does provide a list of things legislators think are inappropriate for all students (including those in their senior year of high school, where they’re often treated legally as adults when charged with crimes), the laundry list of inappropriate things is still far too vague.

H.B. 843 clarifies that books containing “nudity, or descriptions or depictions of sexual excitement, sexual conduct, excess violence, or sadomasochistic abuse” are not appropriate for K–12 students, regardless of the context in which those descriptions or depictions appear in the material.

How much violence is “excessive?” Will health textbooks depicting nudity, sexual conduct, and “sexual excitement” be removed from classrooms? Will no one under the age of 18 be able to access content they’re legally allowed to access anywhere else but in a public library?

Perhaps more importantly, what of the Bible?

During debate on the Tennessee Senate floor, state Sen. Jeff Yarbro (D) noted that the bill’s definition of what is “inappropriate” applies to the Bible. “You cannot read the book of Samuel or Kings or Chronicles, much less much of the first five books of the Bible, without significant discussions of rape, sexual excitement, multiple wives, bestiality — numerous things. That’s before you get in just to, you know, very express and explicit descriptions of violence,” Yarbro argued, according to WKRN News 2.

If this point gets pressed, you can rest assured a carve-out will be created for “religious texts,” but… you know… only applied to one specific religion and its main text.

The terms are vague and overly broad. The guidelines for compliance are still mostly nonexistent. And so, at least one school is reopening for the school year with its library closed.

A Wilson County high school is warning teachers to skip classroom libraries and closed the school library over concerns surrounding a new state law.

Under the law, any brief mention of sex, nudity or excess violence can lead to a book ban.

The Wilson County Director of Schools says they are temporarily closing the library at Green Hill High School to sort through books to make sure they get rid of the those that are required to be banned.

So, as teachers and librarians follow the government’s orders to ensure they’re only exposed to content the legislative majority likes, students are going be struggling to comprehend the things they’re learning in civics classes about their fundamental rights.

And all the bill’s supporters have to offer are patently false assertions about how bad things have been for unprotected students prior to the institution of this law.

Senator Pody explains they are trying to protect children from pornography which they’ve found in the past to be available in public schools.

I guarantee you this isn’t true. Notably, Senator Pody offers no times, dates, locations, or any other verification of his claim “pornography” has been found in school libraries or classrooms. Unfortunately, he’s representative of the legislative majority and its ideals. It’s nothing but censorship propelled by bigotry and backed by lies. Caught in the crossfire are the kids and the public school employees who just want to give them the best education they can.

Location and surveillance technology permeates the driving experience. Setting aside external technology like license plate readers, there is some form of internet-connected service or surveillance capability built into or on many cars, from GPS tracking to oil-change notices. This is already a dangerous situation for many drivers and passengers, and a bill in California requiring GPS-tracking in digital license plates would put us further down this troubling path. 

In 2022, EFF fought along with other privacy groups, domestic violence organizations, and LGBTQ+ rights organizations to prevent the use of GPS-enabled technology in digital license plates. A.B. 984, authored by State Assemblymember Lori Wilson and sponsored by digital license plate company Reviver, originally would have allowed for GPS trackers to be placed in the digital license plates of personal vehicles. As we have said many times, location data is very sensitive information, because where we go can also reveal things we’d rather keep private even from others in our household. Ultimately, advocates struck a deal with the author to prohibit location tracking in passenger cars, and this troubling flaw was removed. Governor Newsom signed A.B. 984 into law. 

Now, not even two years later, the state’s digital license plate vendor, Reviver, and Assemblymember Wilson have filed A.B. 3138, which directly undoes the deal from 2022 and explicitly calls for location tracking in digital license plates for passenger cars. 

To best protect consumers, EFF urges the legislature to not approve A.B. 3138. 

Consumers Could Face Serious Concerns If A.B. 3138 Becomes Law

In fact, our concerns about trackers in digital plates are stronger than ever. Recent developments have made location data even more ripe for misuse.

• People traveling to California from a state that criminalizes abortions may be unaware that the rideshare car they are in is tracking their trip to a Planned Parenthood via its digital license plate. This trip may generate location data that can be used against them in a state where abortion is criminalized.
• Unsupportive parents of queer youth could use GPS-loaded plates to monitor or track whether teens are going to local support centers or events.
• U.S. Immigration and Customs Enforcement (ICE) could use GPS surveillance technology to locate immigrants, as it has done by exploiting ALPR location data exchange between local police departments and ICE to track immigrants’ movements.  The invasiveness of vehicle location technology is part of a large range of surveillance technology that is at the hands of ICE to fortify their ever-growing “virtual wall.” 
• There are also serious implications in domestic violence situations, where GPS tracking has been investigated and found to be used as a tool of abuse and coercion by abusive partners. Most recently, two Kansas City families are jointly suing the company Spytec GPS after its technology was used in a double-murder suicide, in which a man used GPS trackers to find and kill his ex-girlfriend, her current boyfriend, and then himself. The families say the lawsuit is, in part, to raise awareness about the danger of making this technology and location information more easily available. There’s no reason to make tracking any easier by embedding it in state-issued plates. 

We Urge the Legislature to Reject A.B. 3138  

Shortly after California approved Reviver to provide digital license plates to commercial vehicles under A.B. 984, the company experienced a security breach where it was possible for hackers to use GPS in real time to track vehicles with a Reviver digital license plate. Privacy issues aside,  this summer, the state of Michigan also terminated their two-year old contract with Reviver for the company’s failure to follow state law and its contractual obligations. This has forced 1,700 Michigan drivers to go back to a traditional metal license plate.

Reviver is the only company that currently has state authorization to sell digital plates in California, and is the primary advocate for allowing tracking in passenger vehicle plates. The company says its goal is to modernize personalization and safety with digital license plate technology for passenger vehicles. But they haven’t proven themselves up to the responsibility of protecting this data. 

A.B. 3138 functionally gives drivers one choice for a digital license plate vendor, and that vendor failed once to competently secure the location data collected by its products. It has now failed to meet basic contractual obligations with a state agency. California lawmakers should think carefully about the clear dangers of vehicle location tracking, and whether we can trust this company to protect the sensitive location information for vulnerable populations, or for any Californian.  

Reposted from the EFF’s Deeplinks blog.

Would you believe that Disney’s famously copyright-maximalist lawyers have just brought us a nice victory for fair use?

Earlier this year, we wrote about disgraced former Congressman George Santos suing Disney and Jimmy Kimmel after Kimmel used some of Santos’ Cameo videos (that Kimmel had secretly requested) in a, well, somewhat trollish fashion. Santos, who was drummed out of Congress after facing a bunch of charges regarding questionable handling of campaign funds, started promoting that he would record Cameo videos for between $350 and $500 a video.

At one point, he had bragged about how many people had paid him for Cameo videos. This resulted in Kimmel having his staff purchase some Cameo videos, which made Santos look silly. The videos were then played on Kimmel’s ABC late night show. Santos claimed that the videos were purchased under a “personal” use license, which was a lot less expensive than a commercial use license.

The argument was that the videos were used “commercially,” which meant that the license had been violated, and the videos infringed on Santos’ copyright. In my initial write-up of the case, I pointed out that Kimmel had a very strong fair use claim. Some commentators felt that Santos’ argument was a bit stronger than I made out, but it appears the judge in the case, Denise Cote, who has been involved in a number of high-profile copyright cases, agreed with me that it was fair use.

Notably, she granted Disney and Kimmel’s motion to dismiss on fair use grounds. That’s important because some people believe that fair use shouldn’t be decided so early in a case. Either it should go to the summary judgment stage or (much worse) is an issue for a jury to decide.

However, Cote says here that Kimmel’s use was pretty obviously fair use. She notes that the Second Circuit has said that in obvious fair use cases, you can find fair use at the motion to dismiss stage:

The Second Circuit has specifically acknowledged “the possibility of fair use being so clearly established by a complaint as to support dismissal of a copyright infringement claim.”

As in most fair use cases, the court went through the basic four factors test required to determine fair use. The court awarded the first factor (purpose of the use) to Disney/Kimmel because it was clearly about commentary on Santos:

In short, a reasonable observer would understand that JKL showed the Videos to comment on the willingness of Santos — a public figure who had recently been expelled from Congress for allegedly fraudulent activity including enriching himself through a fraudulent contribution scheme — to say absurd things for money. Thus, the Videos were used for political commentary and criticism, purposes that do not supersede the “objects” of the original Videos.

The fact that the use of the videos made Santos look bad doesn’t matter:

Santos’s argument that the defendants should not be able to “seek refuge in the fair use concept of transformation that they themselves manufactured through deceit” finds no support in copyright law. Defendants’ conduct may have been deceptive and unkind, but the Supreme Court in Warhol emphasized that whether a work is transformative turns on neither the “subjective intent of the user,” 598 U.S. at 544, nor the “stated or perceived intent of the artist.” Id. at 545 (citation omitted). A court must instead conduct “an objective inquiry into what use was made, i.e., what the user does with the original work.” Id. Here, the purpose of the defendants’ use was clearly for criticism and commentary of the Videos themselves and their author.

While not always true, the first factor is often the key to winning fair use. The fact that it was found to be favoring Kimmel here basically makes the rest of the analysis less important, but even so, the rest of the factors either favor no one or Kimmel anyway.

On the second factor, the nature of the work, the court says this is mostly neutral, but perhaps favors Kimmel/Disney slightly. The third factor, how much of the work was used, is also deemed to be neutral. It did use the entirety of the work, as other courts have found, but that’s fine if you need to use the entirety of the work for the fair use at hand.

Copying “the entirety of a work is sometimes necessary to make a fair use.” Swatch Group Management Services Ltd. v. Bloomberg L.P., 756 F.3d 73, 90 (2d Cir. 2014). The “ultimate question under this factor is whether the quantity and value of the materials used are reasonable in relation to the purpose of the copying.”….

…. The use of the Videos to criticize and comment on a public figure would have been undermined by showing less than the entirety of the Videos, because the audience would not know whether Santos had indeed said everything in the requests.

Then there’s the fourth factor: the effect on the market. As I had noted in my original piece about the complaint, it would be difficult to argue that Kimmel’s use would harm the market. And, indeed, that’s what the court found as well:

Santos argues that defendants’ use devalued the market for Cameo videos, including Santos’s, by “undermining the integrity” of the Cameo.com platform. Santos does not explain how any impact on the popularity of the Cameo platform — which is entirely speculative — impacts more specifically the public interest in the creative production of new expression. Moreover, the FAC identifies no harm to the potential or existing market for the Videos that Santos created for the defendants, other than the “very use at bar.” Swatch, 756 F.3d at 91 (citation omitted). Thus, this factor weighs in favor of fair use.

Put it all together and you have two mostly neutral factors and two that weigh towards fair use, and thus: fair use.

Taking all four factors into consideration, the defense of fair use is clearly established by the FAC and documents integral to it. The defendants’ use of the Videos was transformative; “transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.”

The court also rejects the breach of contract claims, saying that those are basically arguing the same thing as the copyright claims, and are thus pre-empted.

It wouldn’t surprise me if Santos appeals, but this is a good clean, fair use win. Disney’s copyright lawyers aren’t regularly known for arguing on behalf of fair use, but in this case they were right to, and it’s nice to see the court agree.

Update: And, yup, Santos has already told the court that he’s appealing.

It’s never about the children. Supporters of age verification laws, book bans, drag show bans, and abortion bans always claim they’re doing these things to protect children. But it’s always just about themselves. They want to impose their morality on other adults. That’s all there is to it.

Abortion bans are just a way to strip women of bodily autonomy. If it was really about cherishing children and new lives, these same legislators wouldn’t be routinely stripping school lunch programs of funding, introducing onerous means testing to government aid programs, and generally treating children as a presumptive drain on society.

The same goes for book bans. They claim they want to prevent children from accessing inappropriate material. But you can only prevent children from accessing it by removing it entirely from public libraries, which means even adults will no longer be able to read these books.

The laws targeting drag shows aren’t about children. They’re about punishing certain people for being the way they are — people whose mere existence seems to be considered wholly unacceptable by bigots with far too much power.

The slew of age verification laws introduced in recent years are being shot down by courts almost as swiftly as they’re enacted. And for good reason. Age verification laws are unconstitutional. And they’re certainly not being enacted to prevent children from accessing porn.

Of course, none of the people pushing this kind of legislation will ever openly admit their reasons for doing so. But they will admit it to people they think are like-minded. All it takes is a tiny bit of subterfuge to tease these admissions out of activist groups that want to control what content adults have access to — something that’s barely hidden by their “for the children” facade.

As Shawn Musgrave reports for The Intercept, a couple of people managed to coax this admission out of a former Trump official simply by pretending they were there to give his pet project a bunch of cash.

“I actually never talk about our porn agenda,” said Russell Vought, a former top Trump administration official, in late July. Vought was chatting with two men he thought were potential donors to his right-wing think tank, the Center for Renewing America. 

For the last three years, Vought and the CRA have been pushing laws that require porn websites to verify their visitors are not minors, on the argument that children need to be protected from smut. Dozens of states have enacted or considered these “age verification laws,” many of them modeled on the CRA’s proposals. 

[…]

But in a wide-ranging, covertly recorded conversation with two undercover operatives — a paid actor and a reporter for the British journalism nonprofit Centre for Climate Reporting — Vought let them in on a thinly veiled secret: These age verification laws are a pretext for restricting access to porn more broadly. 

“Thinly veiled” is right. While it’s somewhat amusing Vought was taken in so easily and was immediately willing to say the quiet part loud when he thought cash was on the line, he’s made his antipathy towards porn exceedingly clear. As Musgrave notes in his article, Vought’s contribution to Project 2025 — a right-wing masturbatory fantasy masquerading as policy proposals should Trump take office again — almost immediately veers into the sort of territory normally only explored by dictators and autocrats who relied heavily on domestic surveillance, forced labor camps, and torture to rein in those who disagreed with their moral stances.

Pornography, manifested today in the omnipresent propagation of transgender ideology and sexualization of children, for instance, is not a political Gordian knot inextricably binding up disparate claims about free speech, property rights, sexual liberation, and child welfare. It has no claim to First Amendment protection. Its purveyors are child predators and misogynistic exploiters of women. Their product is as addictive as any illicit drug and as psychologically destructive as any crime. Pornography should be outlawed. The people who produce and distribute it should be imprisoned. Educators and public librarians who purvey it should be classed as registered sex offenders. And telecommunications and technology firms that facilitate its spread should be shuttered.

Perhaps the most surprising part of this paragraph (and, indeed, a lot of Vought’s contribution to Project 2025) is that it isn’t written in all caps with a “follow me on xTwitter” link attached. These are not the words of a hinged person. They are the opposite — the ravings of a man in desperate need of a competent re-hinging service.

And he’s wrong about everything in this paragraph, especially his assertion that pornography is not a First Amendment issue. It is. That’s why so many of these laws are getting rejected by federal courts. The rest is hyperbole that pretends it’s just bold, common sense assertions. I would like to hear more about the epidemic of porn overdoses that’s leaving children parentless and overloading our health system. And who can forget the recent killing sprees of the Sinoloa Porn Cartel, which has led to federal intervention from the Mexican government?

But the most horrifying part is Vought’s desire to imprison people for producing porn and converting librarians to registered sex offenders just because their libraries carry some content that personally offends his sensibilities.

These are the words and actions of people who strongly support fascism so long as they’re part of the ruling party. They don’t care about kids, America, democracy, or the Constitution. They want a nation of followers and the power to punish anyone who steps out of line. The Center for Renewing America is only one of several groups with the same ideology and the same censorial urges. These are dangerous people, but their ideas and policy proposals are now so common it’s almost impossible to classify it as “extremist.” There are a lot of Americans who would rather see the nation destroyed than have to, at minimum, tolerate people and ideas they don’t personally like. Their ugliness needs to be dragged out into the open as often as possible, if only to force them to confront the things they’ve actually said and done.

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Turns out that when you tell advertisers to go fuck themselves, sue the advertisers who did so, and then promise you won’t do anything to stop the worst people in the world from spewing hate and bigotry on your platform, it might not be great for business.

Who knew? Elon, apparently.

Last week we noted that ad execs were saying that Elon’s latest antics were only making them even less interested in advertising on ExTwitter, but there hasn’t been as much talk lately about the financial situation the company is in.

In the first year after Elon took over, there were a number of reports suggesting ad revenue dropped somewhere between 50% and 70%. Elon has admitted that the company’s overall valuation of the company is probably down by nearly 60%.

But most of that was all talking about where it was in that first year post Elon. Since then, there’s been little data on how things were actually going. Linda Yaccarino has insisted that many of the advertisers who left came back, though when people looked at the details, it looked like a few that had come back only dipped their toes in the ExTwitter waters, rather than fully coming back.

And indeed, all we’ve been hearing this year is that Musk and Yaccarino are trying to woo back advertisers. Again. And again. Though, suing them isn’t doing them any favors.

However, buried in a recent Fortune article is the first time I’ve seen any data showing how badly the second year of Elon has gone. While the main focus of the article is on how Elon may have to sell some more of his Tesla stock to fund ExTwitter, it notes that ad revenue has continued to drop and was 53% lower than it was in 2023 (i.e., already after Elon had taken over, and many advertisers had bailed).

And the article says that ad revenue is down an astounding 84% from when Elon took over, based on an analysis by Bradford Ferguson, the chief investment officer at an asset management firm:

Ferguson based his assessment on internal second-quarter figures recently obtained by the New York Times. According to this report, X booked $114 million worth of revenue in the U.S., its largest market by far. This represented a 25% drop over the preceding three months and a 53% drop over the year-ago period.

That already sounds bad. But it gets worse. The last publicly available figures prior to Musk’s acquisition, from Q2 of 2022, had revenue at $661 million. After you account for inflation, revenue has actually collapsed by 84%, in today’s dollars.

Ouch.

A separate report from Quartz (pulling from MediaRadar research) suggests the numbers aren’t quite that dire, but they still see a 24% decline in 2024 compared to 2023. And when the 24% decline is the better report, you know you’re in serious trouble.

Advertisers apparently spent almost $744 million on X, formerly known as Twitter, during the first six months of 2024. That’s about 24% lower than the more than $982 million advertisers dropped on the platform in the first half of 2023, according to ad-tracking company MediaRadar.

No matter how you look at it, it appears that in the second year of Elon’s control, advertising revenue remains in free fall.

No wonder he’s resorted to suing. Platforming more awful people and undermining each deal that Yaccarino brings in hasn’t magically helped turn things around.

Anyway, for no reason at all, I’ll just remind people that Elon’s pitch to investors to help fund some of the $44 billion takeover of Twitter was that he would increase revenue to $26.4 billion by 2028. And, yes, the plan was to diversify that revenue, but his pitch deck said that ad revenue would generate $12 billion by 2028. This would mean basically doubling the ~$6 billion in ad revenue the company was making at the time Elon purchased it. But now that’s been cut to maybe $1.5 billion and probably less.

I’m guessing that Elon and Linda might fall a wee bit short of their target here.

Now that streaming subscriber growth has slowed, we’ve noted repeatedly how the streaming TV sector is falling into all of the bad habits that ultimately doomed traditional cable TV.

That has involved chasing pointless “growth of growth’s sake” megamergers and imposing bottomless price hikes and new annoying restrictions — all while simultaneously cutting corners on product quality and staff in a bid to give Wall Street that sweet, impossible, unlimited, quarterly growth it demands.

Executives are not being particularly sensitive about it despite some hard lessons learned during the cord cutting years. On the heels of yet another recent price hike across Disney’s Disney+, Hulu, and ESPN streaming services (some as high as 25 percent), Disney CFO Hugh Johnston proudly declared that the company had “earned” the right to increasingly saddle consumers with price hikes:

“We do feel like we’ve earned that pricing in the marketplace, and we feel positively about that. With that will come scale benefits. The product improvements also should reduce churn and keep our consumers with us as they’re evaluating their options.”

We literally just went through this cycle to with traditional cable, yet the execs clearly haven’t learned a thing. When pressed during Disney’s earnings call on whether this might annoy subscribers, Disney CEO Bob Iger brushed aside those concerns:

“We’re not concerned. The goal is to grow engagement on the platform. And what I mean by that is obviously offering a wider variety of programming.”

The problem is the price hikes aren’t generally running parallel with service improvements. Prices are not only increasing; but product streaming catalogs are in many instances getting worse (see: both Marvel and Star Wars properties recent sag in quality and critical acclaim).

At the same time, users are facing more technical restrictions than ever in the forms of device restrictions or password sharing crackdowns. Staff are simultaneously being cut or asked to do more, with less.

Wall Street and the traditional business press laud this behavior because executives are simply looking to maximize shareholder value over the short term. The price hikes helped Disney streaming efforts reach slight profitability for the first time ever, helping convince execs that they’re somehow inherently owed massive profits now that they’ve staked out a beachhead in the streaming wars.

Of course nobody is owed anything. And there’s something these folks really don’t want to talk about: namely that, just like a traditional television industry destroyed by this exact same behavior by the extraction class, none of this is sustainable.

Wall Street’s need for improved quarterly returns at any cost inevitably leads to a sort of auto-cannibalization of product quality. You can’t deliver improved returns through subscriber growth anymore, so executives start looking at restrictions (fewer simultaneous streams, more ads, surcharges for streaming in 4K, etc.), layoffs, price hikes, production cuts, customer service cuts, and pointless, massive mergers that misdirect energy and attention away from improving product quality.

Financial deregulation has ensured there’s no real foundational interest (or financial incentive) in building lasting consumer trust, brand loyalty, or product quality. The focus is short term stock jumps and tax breaks, with the latter repercussions being somebody else’s problem (most immediately consumers and labor, but ultimately execs that have to come in later and restructure everything after the ship runs aground).

Customers might not balk at higher streaming prices immediately. For many (especially compared to traditional TV) streaming still provides a decent value proposition, and Iger was quick to insist they’re not seeing much churn yet in response to hikes. But this isn’t a cycle in which Wall Street can ever be truly satisfied. And streaming is on an accelerated timeline to what traditional cable experienced.

As you saw with traditional cable, product and brand degradation and continues until users ultimately flock to competing, more affordable options, which usually includes piracy. Piracy rates are already rising again in response to executive decisions, and executives seem poised and ready to blame everything but themselves for file sharing’s growing resurgence.

It’s about the stupidest thing anyone could claim in defense of an unlawful detention and search, but Waterbury, CT police office Nicholas Andrzejewski did it anyway. He actually told a court (twice!) that someone respecting every single law applicable to them at the point of this unwelcome interaction was at least reasonable suspicion for a search, if not actual probable cause.

Here’s how this started, taken from the Second Circuit Appeals Court’s rejection [PDF] of the officer’s attempt to walk away from this civil rights suit:

At approximately 8:43 p.m. on November 12, 2018, Basel Soukaneh stopped his car with the engine running on the side of a street in Waterbury, Connecticut. Soukaneh’s iPhone GPS, located in a holder mounted to the car’s dashboard, was frozen, and he stopped his car to fix it. The area “was dark and [known as] a high crime area well known for prostitution, drug transactions and other criminal activity.”

Ah. The old boilerplate. These assertions about dark, high crime, drug area, blah blah blah presumably autofill whenever a cop starts a sentence explaining their reasonable suspicions on their incident report. It’s so overused and so devoid of actual facts that it’s become a parody of itself. Here’s Scott Greenfield’s take on this part of the officer’s narrative:

Was there articulable suspicion that a crime was being committed because Souhaneh stopped his car on the street? It was dark, as nights tend to be. It was in a high crime area, as is every area in pretty much any city anywhere. And yet, the court saw no problem with Andrzejewski demanding his license, for doing exactly what drivers are instructed to do by pulling over rather than driving while their attention is focused elsewhere. 

Any reasonable person will read this and realize that this self-proclaimed reasonable cop’s narrative has at least a couple of strikes against it. And that’s well before Officer Andrzejewski decided to convert this truly unnecessary non-stop into a full blown invasion of the interior of Soukaneh’s car and a constantly escalating series of rights violations.

Within seconds after Soukaneh stopped his car, Officer Nicholas Andrzejewski approached the vehicle, knocked on the driver’s side window, and according to Soukaneh, loudly demanded Soukaneh’s driver’s license. The interior vehicle light was on, so although the area was dark, Andrzejewski could see the activity inside of the car when he approached the window. As Soukaneh complied and handed his license over, he also provided Andrzejewski with a facially valid firearms permit. While doing so, Soukaneh also disclosed to Andrzejewski that, per the permit, he was in lawful possession of a pistol that was located in the driver’s side door compartment.

That this is being recounted in a court decision means the officer didn’t just take a look at the permit and wish Soukaneh a good evening. No, it went the other way. And it’s the sort of thing you need to shove directly in the eyeballs of every bootlicking person, police union rep, politician, and law enforcement official who claims police brutality only exists because people “don’t comply” and should just stop “breaking the law.” All laws were followed. Soukaneh did better than simply comply, he volunteered information. And this is what he got for being a model law-abiding citizen.

Following that exchange, Andrzejewski ordered Soukaneh out of the vehicle. According to Soukaneh’s description, Andrzejewski then violently “dragged [him] out of the car,” pushed him to the ground, yelled and screamed at him, handcuffed him, and pat-searched his person, recovering neither a weapon nor contraband. Andrzejewski then “shoved [Soukaneh] into the rear area of [Andrzejewski’s police] cruiser,” and left Soukaneh “bent over and partially on the floor of the vehicle.” Soukaneh remained “in that position, facing down and unable to see, until another police officer came along several minutes later and helped him sit up.”

Once the other officer repositioned Soukaneh in the cruiser, Soukaneh saw Andrzejewski search his “entire car, both front and rear,” as well as the car’s trunk. After the search, Andrzejewski returned to the cruiser and kept Soukaneh handcuffed and detained in it for an additional half hour, during which time “a group of seven to ten police officers gathered.” Id. At one point, Andrzejewski began writing on his onboard computer and turned to a fellow officer who had arrived at the scene and asked, “What should I write him up for?” The other officer laughed and the sergeant, who had also since arrived, told Andrzejewski what to write.

Unsurprisingly, the lower court rejected the officer’s request for immunity, pointing out that while the initial encounter may have been justified, nothing that followed that (pulling Soukaneh from the car, handcuffing him, searching his vehicle, detaining him for another half-hour while trying to figure out what to cite him with) was supported by probable cause.

The Second Circuit comes to the same conclusion. Simply being made aware Soukaneh possessed an item millions of Americans also own legally is not probable cause for anything the officer did past that point.

On the facts before us, Andrzejewski does not provide an articulable reason why he, or any
other reasonable officer, could conclude that there was probable cause to believe that Soukaneh possessed his firearm unlawfully in violation of Section 29-38(a). To find otherwise would consign those validly carrying firearms pursuant to a license to automatic detention because it would effectively presume that gun permits are invalid until proven valid, or that lawfully owned guns are per se contraband until proven otherwise. Such a finding would effectively render armed individuals’ Fourth Amendment rights meaningless when they are lawfully carrying firearms.

The same goes for the officer’s attempt to invoke qualified immunity by claiming no case on point would have made him aware he was not allowed to so thoroughly and lengthily violate this person’s rights. The Second Circuit says it’s not even sure why it’s spending so much time discussing this because it’s blatantly clear what happened here isn’t permissible under the Fourth Amendment.

This is not a close case, about which reasonable officers could differ. The law as it stood at the time of the events in question left no doubt that a person in possession of a firearm and a facially valid permit for that firearm had a clearly established right to be free from the kind of forcible and prolonged detention to which Soukaneh was subjected, absent any objective reason to suspect that the permit was forged or otherwise invalid.

That covers the forcible removal of Soukaneh from his car, his handcuffing, the search of his car, and his extended detention while the officer tried to come up with something to justify his actions after the fact.

It goes back to the lower court. But I imagine it will only be there briefly before Soukaneh is offered a settlement. Hopefully, that settlement will come hand-in-hand with the firing of Officer Andrzejewski. If this is the one time he got caught, just imagine what he’s gotten away with.

Apparently, Judge Reed O’Connor doesn’t think that owning a massive amount of Tesla stock constitutes a conflict of interest when it comes to judging Elon Musk’s legal battles.

Last week, we were briefly surprised when infamously partisan Judge Reed O’Connor recused himself from Elon’s nonsense SLAPP suit against GARM and some advertisers.

As we had reported back in June, Media Matters had raised the issue that Judge O’Connor owns a ton of Tesla stock, which arguably is a conflict of interest in ExTwitter’s lawsuit against Media Matters (which Judge O’Connor had refused to dismiss despite its obvious problems). That matter had still been pending last week when O’Connor surprised lots of people (almost certainly including Elon’s lawyers) by recusing himself from the GARM suit.

We had wondered if it was a sign that Judge O’Connor realized how bad it looked for him to hold Tesla stock while repeatedly ruling on behalf of Elon. But, no, it quickly came out that the issue was almost certainly that O’Connor also owned stock in Unilever, one of the firms that Elon was suing in the case.

And then, just days later, it was made clear that Judge O’Connor sees no conflict in owning Tesla stock. He not only rejected Media Matters’ request that Elon be forced to list Tesla as an interested party, but he also made Media Matters pay Elon’s legal fees over this matter.

Judge O’Connor insists it’s just crazy to suggest that Tesla is somehow an interested party:

First, there is no evidence that shows Tesla has a direct financial interest in the outcome of this case. Tesla neither directly nor indirectly holds equity in X, Tesla is not a director or advisor, and it does not participate in the affairs of X. In other words, there is no indication that Tesla has any control over X or any financial ties to X, and Defendants do not claim as much. The question for disclosure is whether Tesla has a “legal or equitable interest” in X. Defendants merely point to news articles that report some blurred lines between Tesla and X that do not rise to the level of financial interest. These articles do not amount to evidence of a financial interest. Tesla is a publicly traded company, with tens of thousands of stockholders, its own board of directors, and external auditors. X is a privately owned company. The mere assertions that Musk owns a constellation of companies, some former Tesla employees now work at X, and that Tesla leased workspace from X do not support a finding that Tesla and X are not separate legal entities or that they share a financial interest.

Later, in response to points about Tesla stock fluctuating in direct connection to Elon doing stupid shit on ExTwitter, O’Connor notes in a footnote: “Musk, who is neither a plaintiff nor defendant in this suit.”

C’mon. None of us were born yesterday.

Elon is totally driving this lawsuit. He was the one who announced that this lawsuit would be coming based on a tweet that he saw. And, obviously, Tesla’s stock is tied to nonsense going on at ExTwitter. He sold a ton of Tesla stock to do the deal, and there are constant reports that he’s almost certainly going to need sell more to keep ExTwitter afloat.

None of this is that big of a surprise, though. Talking to lawyers, I didn’t find one who thought that O’Connor would buy this argument (which is partly why his recusal in the GARM case took me by surprise, before it was revealed that that was due to the Unilever stock).

But just to add absolute insult to injury, O’Connor said that Media Matters, a small non-profit, has to cover ExTwitter’s legal fees over this motion, despite it being owned by the world’s richest man:

Defendants’ Motion to Compel does not have a basis in law. It lacks a reasonable basis in law because the motion is motivated by an effort to force recusal, as opposed to disclosure of unknown information. Compelling disclosure is proper only when a party lacks necessary information. Carr, 2024 WL 1675185, at *1 (compelling disclosure of unknown LLC members); Steel Erectors, 312 F.R.D. at 677 (compelling disclosure of an unknown parent corporation). The information Defendants seek to compel was not unknown to them.

A Motion to Compel Corrected Certificate of Interested Persons when that information was known appears to be unprecedented. Indeed, Defendants did not cite a single case in which a motion to compel a corrected certificate of interested person was brought under this posture, much less one in which the effort was successful under the Local Rule 3.1 “financially interested” standard. Additionally, Defendants’ motion has no basis in fact. Local Rule 3.1’s clear incorporation of “financial interest” requires “legal or equitable interest.” 28 U.S.C. § 455(d)(4). 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.10 Accordingly, Defendants’ Motion is not substantially justified and attorney’s fees are appropriate.

Already, Judge O’Connor’s ridiculous decision to order discovery in this case, rather than properly dismissing it for lack of jurisdiction (among many other reasons), has resulted in layoffs at the non-profit. The impact of this ruling and the fee shifting is likely to do even more damage.

From the beginning, it has been clear that this was a SLAPP suit by Elon, angry that Media Matters (accurately) called out how ads on ExTwitter were appearing next to literal neo-Nazi content. The complaint from ExTwitter admitted that Media Matters accurately reported what it found. The only purpose of this lawsuit is to try to bleed Media Matters dry and to warn away other critics from doing similar reporting.

There’s a reason that most anti-SLAPP laws include fee shifting going the other way (making the wealthy vexatious plaintiffs pay the legal fees of the weaker defendants). Seeing O’Connor basically flip the script here is yet another reason why anti-SLAPP laws are so important.

Having Judge O’Connor let the case move forward to discovery in the first place was already a travesty. Now awarding fee shifting over Media Matters for calling out the potential conflict regarding Tesla’s connection to the case just feels like O’Connor, somewhat gleefully, twisting the knife that Elon plunged into the non-profit.