Author: TSA Press

Sometimes even doing everything right gets something wrong. When it comes to video game development, this statement is right on point. It should come as no surprise to those in the video game development and publishing community that a host of considerations must be weighed when developing a video game. From the technical aspects of the program (such as graphics rendering and online multi-user handling) to the story line and gaming construct, developing and publishing a video game in this day and age is no easy task. What is becoming even more important, however, is the importance of the online gaming community to the ongoing success of any gaming franchise. Gone are the days of buying a video game and simply playing it to its conclusion — we are in the age of massively multiplayer online (or “MMO”) gaming platforms, and online gamers that record and monetize their online exploits. It is at this intersection of video gaming and entertainment that some interesting (and unintended) intellectual property issues arise, and like a good MMO game, they are getting some attention.

Video games have come a long way in just the past 10 years. Instead of just interacting with the game and playing against another friend or three present with you at the console, MMO gaming platforms allow large numbers of individual gamers worldwide to compete together in online gameplay from the comfort of a chair at home (or a mobile device for that matter). One of the better-known gaming platforms is Fortnite by Epic Games — an MMO platform that has players glide into a defined world and fight each other in playful combat using characters that they can clothe and customize through its online “shop.” One of the customizations includes the ability to exercise an “emote” — a series of dance moves usually accompanied by music that permits the players to express themselves and their feelings during gameplay. From the somewhat better known (like the “Electric Shuffle”) to the more obscure (“Hootenanny,” anyone?), there are a host of different ones to choose from to reflect the personality (and moods) of the player. As fun and expressive as they may be, the incorporation of such emotes and music have unlocked some issues that can cause some unintended missteps for the video game developer if they are not careful.

Recently, the “Never Gonna” emote was added to Fortnite. For those not in the know, this emote is based upon the 1987 hit Rick Astley song “Never Gonna Give You Up.” The emote basically plays a portion of the song, with the player mimicking the dance moves performed by Rick Astley in his original music video for the song.  It also capitalizes on a popular online prank using a disguised hyperlink to the music video in a type of “bait and switch” from the purported content after the click, lovingly referred to as “rickrolling.” This is where things get problematic. First, the incorporation of dance moves comes with some risk — as I have written here a year ago, some artists have sued Epic Games for incorporating their signature dance moves (such as Chance the Rapper and Alfonso Ribiero and his “Carlton” dance). Some of these combinations of movements may (or may not) qualify for copyright protection, so a proper vetting prior to incorporation is prudent. To the extent such personalities have actually registered the copyrights to their dance moves before asserting copyright infringement (courtesy the SCOTUS holding in the Fourth Estate case), any videogame developer seeking to incorporate such dance moves needs to consider an appropriate license prior to doing so. Of course, the same goes for any associated music; however, this is where the law of unintended consequences comes into play.

The problem with emotes and their associate music is best illustrated by looking at the “Never Gonna” emote. Epic Games stepped up their game by licensing this content for incorporation into Fortnite, but in doing so they did not realize that they would be creating potential problems for their players.  How? Many online gamers stream their playing on other platforms (such as YouTube and Twitch). Some of these players have developed significant followings of subscribers who enjoy watching this content, which these players are able to monetize through the platforms depending upon the number of subscribers. Therein lies the rub — the license provided to Fortnite covers the public display and performance within the MMO gaming platform, but the streaming of such content (or recording of the gameplay for views on these platforms) rests outside the scope of these licenses. As a result, YouTube’s automated Content ID tool, used to identify potentially infringing content, is flagging such videos, and the content creators are losing the ad revenue generated from such content. In sum, Fortnite’s licensed incorporation of the emote has resulted in potentially unlicensed use by the very gamers who help propagate the popularity of the online MMO gaming platform.

So what is the solution? In the short term, it seems that Fortnite has created a patch that will permit such gamers (a.k.a. content creators) “playing on PC [to] mute licensed emote audio.” Obviously, that “fix” is helpful, but incomplete. Ultimately, the fix will be to account for such secondary streaming and recorded video in any future licensing. YouTube’s Content ID tool will then need to account for such licensing accordingly.

The lesson here is that the videogame developer did not account for the essential part of its gaming community — its creator base. Fortnite’s popularity is due in no small part to the millions of subscribers who view streaming and recorded gameplay by such content creators. Any video gaming developer seeking to incorporate choreography or music should take heed of Fortnite’s experience (and its lead) — avoid stepping on the toes of both licensors and content creators alike by taking the appropriate steps to ensure that the appropriate intellectual property rights are licensed. Such steps will have the respective gaming communities dancing to the right tunes and contributing to a healthy bottom line for the company.

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

As we start 2020, many would (reasonably) argue that the tech disruption of the legal industry is well underway. The pessimists among us, however, will argue that change has been relatively incremental. At a macro level, they would argue that law continues to be practiced in much the same manner as it always has been in the modern era. Where, they would question, is the dramatic change? Where are Tomorrow’s Lawyers? Certainly in a market that seems to sustain ongoing rate increases, one can question not only the impetus for change, but also whether that change is actually occurring at all.

Personally, I think that we get far too caught up with expectations of revolutionary change instead of evolutionary change. Stanford scientist Roy Amara is reputed to have said, “We overestimate the impact of technology in the short-term and underestimate the effect in the long run.” The ubiquitous internet gives us a great example of this phenomenon. The Advanced Research Projects Agency (ARPA) built the beginnings of the internet starting in 1966. The omnipresent connectivity (and associated productivity) that we take for granted took many, many years to infiltrate its way into our lives, but now it’s hard to conceive of life without the internet.

Innovation blogger and author Ralph-Christian Ohr defines evolution as ongoing and incremental innovations, as compared to revolution, defined by radical and discontinuous leaps to completely new offerings. The internet in this model would represent an evolutionary example of evolution, whereas the smartphone could be argued to be revolutionary. When talking about the legal industry, I would make the argument that we are experiencing and will continue to experience evolutionary changes. Legal technology that addresses specific use cases (e.g. document review) is reaching higher rates of adoption and becoming more common, which in turn opens the door to more innovation in the future.

To take another contemporary example, consider the concept of the self-driving car. The reality is that a vehicle with full automation will look very different than the car you have today: there won’t be a need for a steering wheel, mirrors, or other safety features made to prevent accidents caused by human error. While cars made today still have all of those features and are not purely self-driving vehicles, they do have many features that are necessary for a self-driving car: self-correcting navigation, automatic braking, parallel-parking capabilities, and adjusting for traffic in cruise control. These features are all AI-driven capabilities and are aspects of the self-driving car that are materializing right in front of us.

My suspicion is that few of us are ready to get into an automated car with no driver controls at this point, but the incremental changes that we’re experiencing in automotive technology right now will help to make that transition to a fully automatic vehicle much easier, whenever or wherever that moment arrives. I would argue that the same logic can apply to legal practitioners. Incremental adoption of foundational technology will make the process of adoption enabling and even transformational technology much easier in the long run.

Wolters Kluwer’s Future Ready Lawyer survey backs this theory up with some data. The survey found that the adoption of foundational technologies delivers benefits today and sets the stage for integrating more advanced technologies on an ongoing basis. With this argument in mind, I have a couple of recommendations for those interested in driving innovation incrementally, or those looking for the next steps in implementing a higher rate of tech adoption within their organizations.

Adoption today will pave the way for better understanding of new technology tomorrow. Many of us have seen or experienced how a lack of understanding of technology can stand in the way of innovation. There is a reason why the Future Ready Lawyer indicated that technology leading organizations are more likely to overcome this challenge — having experience in adopting tech solutions can open the door for adopting newer, more complex tech solutions as they move toward maturation and become more widely available in the market.

Innovation should foster even more innovation. The legal industry is changing fast, and we no longer live in a world in which having one tech tool makes you innovative. Onboarding one type of technology successfully shouldn’t be the end goal of adoption — rather, it should be the case study in the argument for onboarding future solutions that address specific pain points and use cases for an organization.

We are all interested to see what the future brings us in the legal industry –- and it’s safe to say that no one is certain of how much different it will be in a few years. What we can ascertain is that those who are already using impactful technologies to increase efficiencies and achieve better outcomes are far more likely to benefit from the advantages that technology delivers.

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Drug patents take center stage in the drug price debate. Although the need for cheaper options such as generics and biosimilars is great, pharma companies are often reluctant to let drug patents expire since they can continue to generate revenue.

Pharma bro Martin Shkreli called public attention to the practice of obtaining manufacturing licenses for drugs with patents that expired and boosting their prices. Another approach, known as “Evergreening”, allows drug companies to extend their monopolies and stave off generic competition by obtaining patents to cover new uses for drugs, methods of manufacture and formulations.

From 2016-2020 our biopharma reporters past and present have explored the drug patent terrain. Their articles provide a guide to the drug patents that were set to expire and highlight efforts by the FDA to stimulate the market for generics. They also highlight the challenges of getting cheaper drug options to market.

Fill out the information below to download our latest eBook: What is dead may never die: A review of the afterlife of drug patent expirations.

As an associate at most larger law firms, interactions with the firm’s accounting department are often sporadic at best. Most of the time, you never hear from accounting at all. At some point, when you have been fortunate enough to originate a client or two, you will likely be introduced to someone in accounting, who will likely reach out to make sure that outstanding invoices are in the process of being collected, if at all. Making partner doesn’t change things much — your interactions with accounting typically revolve around billing and collections issues. (While collecting money can be a bear, at least you can also take succor in the fact that you are a partner at a large enough firm to have its own internal accounting staff.)

What about personal taxes for Biglaw lawyers? As a salaried associate or counsel, they are actually quite easy to handle using tax software or a volume preparer — unless you have a spouse with their own business, or have inherited a vast real estate empire that generates income for you on the side. Even as a partner, most of the difficult personal tax issues — such as paying state taxes in each state the firm operates in — are handled by the firm, leaving your personal return relatively simple to handle with minimal outside help. In fact, at least for litigators, you are more likely to have to spend more time dealing with litigation audit requests from accountants for your clients than you need to spend on your personal taxes. Again, assuming your main income is from your Biglaw draw and distributions, without involvement of income-bearing investments of consequence and the accompanying additional tax complexity.

Things change immediately, however, once you decide to leave the big firm cocoon (or if you never entered one, right when you start practicing) to open your own firm. As a service business owner (albeit one that is a bit disadvantaged under current tax law relative to other businesses), one of the first things you need to do is find a good accountant. This can’t be overstated — and is as integral to running a successful law practice as picking the right banking relationship or malpractice insurance provider.

In fact, it is well worth the investment in time to actually interview accountants before selecting one. You can start with practices that come recommended by others and have some familiarity with the types of issues firms like the one you are starting typically encounter. Probably best to talk to at least two so you have some means of comparing options. For firms with established accountants, it is important to continually evaluate your relationship with your firm’s accountant, to make sure you are getting the expertise and service your firm needs to flourish.

Considering how important it can be to have good accounting help, it is also worthwhile to consider what you can do as a client to help your accountant provide optimal service. That starts with recognizing how busy accountants can get, especially during tax season. Which means helping them out by organizing the firm’s finances, collecting 1099s from clients, and assembling whatever other information the accountants will need for the firm’s upcoming return. In addition, an awareness of the accountants’ workload during tax season suggests you should leave the planning and strategy discussions for less busy times. Ideally after filing season has completed, when your discussion can take into account the return that was just filed as well as your performance to date in the current tax year.

As important as a relationship with a solid accountant can be for a firm, it is also important for lawyers to learn from how accountants service their clients. In fact, anytime you, as a lawyer, interact with other service providers, you are provided with an opportunity to learn something. Sometimes, we can emulate what we learn, such as how good accountants really take the time to try to understand a client’s businesses as much as possible. So that advice can be tailored to the particular needs of the client — something any good lawyer should strive to do for all clients. And at other times, a lawyer may be presented with an example of what not to do from a fellow service provider, such as if an accountant is not forceful enough about getting critical documents or information from a client, resulting in errors on a return, for example. Here too, a lawyer can learn how important it is to be persistent about making sure that clients are giving the full picture, so that any advice can be accurate and responsive to the client’s actual needs.

Ultimately, developing a relationship with a good accountant is a must for any firm, as it is with any business. Our practice has benefited from the good advice we have gotten from accountants we have worked with, on issues such as how best to structure licensing deals to whether or not it is worth it to pursue tax refunds from overseas withholdings of monies due our clients by foreign defendants. Just as each and every practice is different, so too will a firm’s needs from its accountants be different. So take the time to find a good one, or periodically consider whether your current accountant is the best match for your firm. For as long as the answer is yes, appreciating the accountants will always be good form.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

The main guideline is for people to stay at home if they want to, but if there are reasons they have to come in, they can. There is no news of firms shutting down yet, but it would be absolutely disproportionate to what is going on. If you go around in Milan today, it is not a dead city. Of course people are scared, but I think they’re more scared because of the press coverage.

— a partner at BonelliErede, an Italian Biglaw firm, commenting on what precautions members of the legal profession have been taking due to the sudden coronavirus outbreak in Milan. A partner at Bird & Bird, a U.K. firm with offices in Rome and Milan, said that meetings at the Milan office are “highly discouraged” and “travels from and to our office in Milan are restricted.” The Hogan Lovells office in Milan is still open, but “people have the option to work remotely” during the health scare.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Conservatives must be happy that the little fragments of judicial independence Supreme Court Justice Clarence Thomas has seem to be withering away.

The right wing has long had a hard-on for Chevron deference — the foundation of administrative law established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. which grants deference to government agencies’ statutory interpretations. Retired Justice Anthony Kennedy has long been opposed to Chevron, and Justice Neil Gorsuch wrote of the case, saying, “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.” And the Heritage Foundation — an organization so racist they actually named themselves after white history — said Chevron “raises major constitutional concerns, is inconsistent with the Administrative Procedure Act, and has little basis in American legal history.” But despite this, Thomas has been in favor of the case that makes the administrative state go.

In the 2005 case National Cable & Telecommunications Association v. Brand X Internet Services, Thomas wrote for the 6-3 majority in defense of Chevron. Brand X established that under Chevron statutory interpretations by administrative agencies outweigh the precedents of appeals courts unless the court found the statute was “unambiguous.” But now Thomas thinks his Brand X logic was all wrong.

On Monday, the Supreme Court denied cert in Baldwin v. United States, which, you know, is something that happens all the time and is generally unremarkable. Thomas flipped the script in Baldwin — which relies on Chevron/Brand X — writing a dissent to the denial of cert, because he wants to tear it all down.

And, because of course, Thomas cites himself for the proposition that he should be able to overturn his own decision:

“Although I authored Brand X, ‘it is never too late to ‘surrende[r] former views to a better considered position,’” Thomas wrote in his Monday dissent, quoting himself from a 2018 opinion in South Dakota v. Wayfair, Inc.

That’s one helluva stare decisis snake eating itself.

So if we are left to parse Thomas’s new judicial “philosophy,” it’s that we should trust his original understanding of people who died 200 years ago despite the fact he can’t even trust his own original understanding of something HE WROTE 15 years go. Delightful.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Prince’s estate administration just got a lot more crazy. The icon died intestate in 2016. His estate is still not settled. His heirs are his next-of-kin, his six siblings (including one, Alfred Jackson, who died last summer). Since Prince’s death there has been much litigation as to control and management of the estate, which is estimated to be worth between $100 million and $300 million, in addition to valuable royalty rights.

Jackson’s death has had a significant effect on the Prince estate administration. Prior to his passing, Jackson had signed most of his interest in Prince’s estate to Primary Wave. Primary Wave is a talent management, entertainment and digital management company. Primary Wave also invests in music publishing. Recently, Primary Wave made news by acquiring 70 percent of music group Air Supply’s royalty income stream.

As a result of Primary Wave’s acquisition from Jackson, it wants to be considered an heir of the Prince estate. This could affect the management of the estate. Some of Prince’s other heirs are objecting.  Jackson died soon after signing over his interest to Primary Wave. Some suggest that he has mental issues. Tyka Nelson, a sister of Prince, also made a deal with Primary Wave.

It gets even more complicated. Jackson left a last will and testament wherein he left the reminder of his share in Prince’s estate to Raffles Van Exel, a Dutch entertainment consultant. Jackson’s family is contesting the last will and testament. Van Exel is famously known for being friends with Whitney Houston and Michael Jackson.

Administering an estate of Prince’s size and complexity is expensive. Court documents reveal that Comerica, the bank administering the estate, has received $1.5 million in fees. Attorneys have also presented bills or asserted liens in the hundreds of thousands of dollars. The family is waiting for the estate to be finalized so that they may receive their monies. In selling his interest in Prince’s estate, Jackson wanted to raise cash so that he could enjoy the money sooner. Unfortunately he passed away shortly after making the deal.

Sometimes estates are complicated by the death of beneficiaries during the administration period. If an heir or a beneficiary dies during the estate administration, her respective estate will receive the first estate’s share. Therefore, if an heir leaves her own last will and testament, the beneficiaries under her last will will inherit from the first estate. If an heir dies without a last will, her heirs will divide her share in accordance with the laws of intestacy. Last wills generally have survivorship clauses so that in order to receive a bequest from an estate, one has to survive the decedent by a set number of days. This helps to effectuate a testatrix’s intent, by ensuring that the assets will go to her beneficiaries as opposed to her beneficiary’s beneficiaries.

Prince’s estate has had its share of complexities from valuation issues, to identifying heirs, to costs. The most recent issues pertaining to Alfred Jackson can be directly linked to the tremendous costs and times associated with the estate administration. The beneficiaries of an estate, no matter how large it is, are often faced with money and time challenges as they attempt to navigate the various issues arising from the decedent’s death. For certain, had Prince executed a last will and testament, many of these issues could have been mitigated.

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Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com. 

As a public relations stunt, it’s hard to do much better than “Originalism.”

With the courts taking on increasingly volatile political decisions, it’s comforting to think that there’s an unshakeable, predictable philosophy motivating jurists. That conservatives evaluate legal questions through the immutable lens of the public understanding of the Constitution at the time of ratification reassures the public that whatever anyone thinks of conservative opinions, at least they’re based in principles and not shifting erratically based on the whims of the contemporary political aims of the GOP.

It has always been a lie of course, but it’s a pretty successful one.

The conservatives on the Court have all but given up the facade of Originalism, granting cert in a gay rights case signaling an intent to protect Catholic Social Services who got cut off by the Philadelphia adoption program for refusing to place children with same-sex couples. The basis for the looming decision, previewed over the last several years by Supreme Court Oracle Justice Alito, is that religious freedom requires government respect the religious freedom to violate discrimination laws. The only problem with this plan is that the conservatives have already ruled that the “Originalist” read of religious freedom is the exact opposite. Apparently there are more different “Originals” in the First Amendment than there are in Ray’s Pizza establishments.

For a step-by-step rundown of how this came to pass, check out this from Mike Sacks, but the nutshell version is that Justice Scalia handed down the Original^TM meaning of religious freedom back in the 90s at a time when society dared to think it meant respecting even those crazy religions that hadn’t accepted Christ as their personal savior. Scalia schooled us all on what the Founders were really thinking and explained in Smith that the First Amendment didn’t give individuals the right to say that laws violated their religious beliefs.

But today, religious freedom is en vogue among the MAGA set. Taking a page from the old segregationist schools who tried to keep out black students based on perverted religious arguments, companies like Hobby Lobby have wrapped themselves in religious liberty to keep from providing comprehensive health plans to employees. With religious liberty becoming discrimination’s most fashionable excuse, the Supreme Court finds itself at a crossroads staring back at Justice Scalia’s opinion in Smith and poised to dutifully explain that everyone should disregard the “Original” understanding of the Framers in that case and respect the “Original” understanding of the Framers they’re laying out now. By next year, everyone in FedSoc will happily tell you that this is what religious liberty always meant and that we’ve always been at war with Eastasia.

Obviously, this isn’t the first time the defenders of “WWTFD” (What Would The Framers Do) have had to cynically run from the clutch of slaveholders they hold up as demigods. Whenever gun regulations show up, they hilariously define the “original” meaning of the Second Amendment based on post-Civil War scraps because everyone saw George Washington march an army out to quash the Whiskey Rebellion providing pretty compelling evidence that the Founders did not think “bunch of drunks stockpiling individual firearms” had anything at all to do with the Second Amendment. In a comical effort to make this all make sense, scholars pitched the idea of “Originalism at the Right Time” which is akin to saying “I’m a virgin except for all the sex stuff.”

Still, even with the core philosophy in tatters, what more liberal legal scholars don’t understand is just how powerful “Originalism” is as a tagline. There’s no comparable judicial philosophy that can convince the uninformed that liberal jurists aren’t just making stuff up as they go along. The most popular alternative forwarded in liberal circles is “fair minded constitutionalist” which just underscores the idea that liberal jurists make case-by-case decisions based on fairness which is admirable but not great branding for a philosophy. At that point, just go back to the “Living Constitution” formulation. Find something that is intellectually consistent and provides a measure of historical stability. Like “A Reconstructionist” who views everything through the lens of a robust reading of the Fourteenth Amendment or something like that.

Anything that can stand up to the cult of Originalism. Because if anyone doubts how powerful that fake narrative is, take heed of just how many FedSoc talking heads are going to find a way to explain how this new, more Originaler opinion was the true Originalism all along.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Over the past several years, you may have come across articles discussing possible changes to 47 U.S. Code § 230. For anyone who is not aware, Section 230(c)(1) guarantees that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Basically, Section 230 allows companies on the internet “to moderate content without becoming liable for it,” however, Section 230(c)(2) also requires that content hosts exercise “good faith” moderation practices to restrict access of “obscene,” or “excessively violent” material.

For years now, there has been a narrative regarding Section 230 liability protections, from both the political right and left, that characterizes the statute as “a gift” to giant internet-based companies. After last week, however, that narrative was affirmatively shattered.

As Mike Masnick at Techdirt makes clear, the giants of the internet industry, like Facebook, have recognized that not only can they survive without Section 230 liability protections, but that removing them would help eliminate competitors. Why? Well, without Section 230 liability protections websites are not going to host much user content given that it would open them up to lawsuits. I probably don’t need to tell anyone reading this, but litigation can be ruinously expensive, and as we have seen on an almost a weekly basis at this point, lawsuits can be weaponized by those in power in order to silence critical speech.

This is why protections like Section 230 that shield companies or individuals from ruinous, frivolous lawsuits become necessary. For a company as gigantic as Facebook, however, which has an army of attorneys on staff, the threat of lawsuits is far less of a concern. This is why supporting the repeal of Section 230 has become what Masnick calls a “strategic choice” for Facebook to harm and stifle its smaller competition.

Equally alarming to the news that Facebook is openly engaged in an effort to repeal Section 230, last week on February 19, the United States Department of Justice held a workshop called Section 230 — Nurturing Innovation or Fostering Accountability? For an in-depth breakdown on the entire workshop, Techdirt has a fantastically detailed three-part series you can find here. For general purposes, however, it need only be said here that the workshop made clear this current administration is firmly committed to repealing Section 230 protections.

Accordingly, with both big tech and the DOJ on board, and throw in bipartisan support gaining in Congress for good measure, it is officially time for those who value Section 230 protections to panic.

To understand what is at stake, consider that David Post, an expert in intellectual property law, considers Section 230 to have “been responsible for the creation of more value” than any other sentence in the U.S. Code. Per Post: “It is impossible to imagine what the Internet ecosystem would look like today without it. Virtually every successful online venture that emerged after 1996 — including all the usual suspects, viz. Google, Facebook, Tumblr, Twitter, Reddit, Craigslist, YouTube, Instagram, eBay, Amazon — relies in large part (or entirely) on content provided by their users, who number in the hundreds of millions, or billions … . I fail to see how any of these companies, or the thousands more like them, would exist without Section 230. The potential liability that would arise from allowing users to freely exchange information with one another, at this scale, would have been astronomical, and it is impossible for me to imagine, say, an investor providing funds for any of these ventures in a world without Section 230. [And it is not a coincidence, in my view, that these companies are all U.S.-based, no 230-like immunity being provided in most other legal systems around the world.]”

My former law professor and friend, Derek Bambauer, who teaches Internet law and intellectual property at the University of Arizona agrees with me that it’s time to panic, and in an email described our current situation this way: “The great genius of the Internet is that it empowers everyone connected to it to become an author, a composer, an artist — and to find an audience for their craft. As Justice John Paul Stevens wrote more than twenty years ago, any Internet user ‘can become a town crier with a voice that resonates farther than it could from any soapbox.’ The explosion of user-generated content that we love — from memes to fan fiction to cat videos — depends largely on the protections that Section 230 offers. Without it, platforms bear the risk that content they carry will create ruinous liability. Internet firms, like all companies, are risk-averse. Diminishing Section 230’s protections will decrease outlets for expression and will undercut our ability to benefit from the vast human creativity that, right now, is only an iPhone camera and a few clicks away.”

Repeal would also return us to the great common law dilemma that led to Section 230. In the 1990s, two cases had established the precedent that if content providers imposed virtually any form of control over user content, they could be held liable. In other words, the choice for content providers prior to Section 230 was extreme censorship or none. This is a vastly different internet than what most of us are used to, and if you value it, recent events demonstrate you’re going to have to fight for it.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

He has dismally failed to compensate aggrieved families of the State-instigated murders in line with the recommendations of an international investigation committee that he commissioned himself. Mnangagwa has lied to the international community that he has compensated the victims of the murders when in fact orphans and families of the State-sanctioned murders are wallowing in abject poverty as evidenced by the video accompanying this statement. The orphans of the six victims of the August 1, 2018 murders are failing to go to school and are scrounging for food while the murderers are still to be prosecuted, in spite of Mnangagwa lying to the world that he has complied with the recommendations of the Mothlante Commission.

The Commission found the police and the army liable for the murders, which makes Mnangagwa personally culpable because he is the commander-in-chief of the military, whose rogue elements needlessly snuffed out the lives of the six innocent Zimbabweans.

The United Nations Security Council has let Zimbabwe down by failing to drag Mr. Mnangagwa before the International Criminal Court for crimes against humanity. While Zimbabwe is not a signatory to the Rome Statute of the ICC, there is a precedent of the world body not folding its hands when non-State parties have grossly abused human rights. The UN Security Council intervened in Sudan in 2005 and in Libya in 2011 when the respective countries’ leaders were fingered in crimes against humanity. Notwithstanding the excesses of the P5 members of the UNSC in Libya in 2011, the Responsibility to Protect (R2P) remains a noble principle that should send a clear and unequivocal message to killer governments such as the Mnangagwa regime. Africa has also let Zimbabweans down as she has adequate provisions under Article 4 (h) of the constitutive Act of the African Union that allows the regional body to intervene in member States in respect of “grave circumstances.”

And the murderous predisposition of the ED regime constitutes a grave circumstance.

Zimbabweans are not safe from their own government. State security agents have twice killed people under the murderous regime of Mr. Mnangagwa while machete-wielding vigilante groups have wreaked havoc in the countryside, with no action whatsoever being taken against them. A slow genocide is also taking place in the country’s health institutions as the regime has completely abdicated its responsibility in respect of providing prudent health services to the citizenry.

Zimbabwe is ripe for intervention and Mr. Mnangagwa is a prime candidate for the ICC. No government elected by the people can kill the very people who voted for it unless such a government has no mandate from the people.

Zimbabweans will soon be taking it upon themselves to engage in a robust but legitimate call for the true people’s government they voted for in 2018.

#ThePeoplesGovernment

Luke Tamborinyoka
Deputy National Spokesperson.

Post published in: Featured