Welcome to the Bogosity Podcast for the week of September 08 2024,
the podcast that will dance on the floor in the round.
This is your host, Shane Killian. Let's mytoricate the News of the Bogus.
And the big news, the worldwide anti-free speech brigade has made their first big move:
France just arrested Pavel Durov, the creator of Telegram, on 12 charges,
none of which he is actually accused of.
A separate, unnamed person is charged with:
Web-mastering an online platform in order to enable an illegal transaction in organized group,
refusal to communicate, at the request of competent authorities (yeah, right),
information or documents necessary for carrying out and operating interceptions allowed by law,
possessing pornographic images of minors, distributing,
offering or making available pornographic images of minors, in organized group,
acquiring, transporting, possessing, offering or selling narcotic substances...
By the way, it isn't even clear that all of these charges are against a single person.
We just don't know. Anyway:
Offering, selling or making available, without legitimate reason,
equipment, tools, programs or data designed for or adapted to get access to
and to damage the operation of an automated data processing system,
organized fraud, criminal association, Money laundering...
Now pay attention to these last three:
Providing cryptology services aiming to ensure confidentiality without certified declaration,
because you need our permission to do things in private,
providing a cryptology tool not solely ensuring authentication
or integrity monitoring without prior declaration,
and importing a cryptology tool ensuring authentication
or integrity monitoring without prior declaration.
Yes, the charges are for strong encryption.
By the way, the document linked in the show notes says that Durov isn't being charged,
just held for questioning, but he has since been charged on every single one of these.
Anyway, Durov was charged because he made the platform enabling all of these.
A blatant violation of common law precedent going back centuries!
But then, we've seen before how far gone France is in this area.
The thing is, Telegram was never known for its strong encryption
and had been widely panned as not being anywhere near as secure as claimed.
So this arrest is bound to make cybersecurity experts feel some kind of way, like Matthew Green, who Xed:
"I hope that the arrest of Pavel Durov does not lead to him or Telegram being held up as some hero of privacy.
Telegram has consistently acted to collect huge amounts of unnecessary private data on their servers,
and their only measure to protect it was 'trust us.'
For years people begged them to roll out even rudimentary default encryption,
and they pretty aggressively did not do that.
Their response was to move their data centers to various middle eastern countries,
and to argue that this made your data safe. Somehow."
"Over the years I've heard dozens of theories about which nation-states
were gaining access to that giant mousetrap full of data they'd built.
I have no idea if any of those theories were true. Maybe none were, maybe they all were.
What I do know is that if you build a giant data vacuum cleaner
and market it to all sorts of folks that would be obvious targets for spying,
then you're pretty much begging to have someone come after the resulting pile of data.
With or without your cooperation.
You can believe that Telegram was malicious in doing this.
You can assume they were just negligent.
I don't care: the outcomes are all really, really bad."
"So by all means be angry that France is using weird legal powers to arrest Durov.
It feels legitimately bad. But don't lionize these people.
They knew exactly what the stakes were and they could have done real things to protect their vulnerable users.
They just didn't."
But, of course, those are always the ones they start with.
And if you don't think it's going to continue on with another platform,
just look on my YouTube channel for the latest Robert Reich video,
where he, without a trace of irony,
calls for Elon Musk to be arrested because of his free speech on X.
If you've been wondering when is the time to make a stand, it's now, people.
Speaking of X, we've got an update in their lawsuit against Media Matters.
As we covered, X is suing for defamation because they, allegedly falsely,
told advertisers that if they dared to advertise on X their ads would be shown next to "extremist" content.
Specifically, they claim to have found advertisements by IBM, Apple, Oracle, and Comcast's Xfinity
placed alongside posts touting Adolf Hitler and the Nazi party.
As we covered, not only was this content created by Media Matters themselves,
they had to scroll or reload millions of times to get pairings of their content with X ads.
Extremely cherry-picked.
So, X has just won their first battle in the lawsuit, which is overcoming Media Matters's Motion to Dismiss.
They tried to claim truth as a defense, when X alleged not only lies, but actual malice as well.
District Judge Reed O'Connor ruled:
"A fair reading of Plaintiff's complaint alleges all three Defendants committed the tortious conduct
by engaging in an 'ideologically driven crusade' to damage Plaintiff
by targeting Plaintiff's blue-chip advertisers with manipulated information
designed to drive them from doing business with Plaintiff.
The Amended Complaint explains that these three Defendants, and others,
orchestrated a plan to manipulate Plaintiff's platform
to align ads from Plaintiff's customers with inflammatory posts."
"First, construing the facts pled by Plaintiff in the light most favorable to it,
that Defendants manipulated and intended to deceive Plaintiff's advertisers
is sufficient to support the first element.
Plaintiff alleges Defendants acted with malice and without privilege
by asserting Defendants' reporting was false
and the frequency and tenor of Media Matters' statements disparaging X
and the safety of advertising on the X platform supports an inference of actual malice.
And finally, Plaintiff has pled a plausible claim regarding special damages
in that Defendants tortious acts undermined advertisers' faith
in X Corp.'s abilities to monitor and curate content."
There was also a lot of screeching and crying—as there was in the press—
that the venue X sued in was the Northern District of Texas.
The federal rule here is Rule 12(b), which, in part, says that if there's not a connection to that particular venue,
you have to dismiss the case or switch venue.
And their actions targeted, among others, Oracle Corporation, headquartered in Austin,
and AT&T Inc., headquartered in Dallas. O'Connor ruled:
"The alleged conduct was directed at two blue-chip advertising Texas companies
in a way that is different than would randomly or fortuitously affect other states.
A defendant who targets a Texas company with tortious activity
has fair warning that it may be sued there."
And he beautifully quoted the Fifth Circuit in Revell v. Lidov saying, quote:
"If you are going to pick a fight in Texas, it is reasonable to expect that it be settled there."
And O'Connor wasn't at all impressed with the defendants' response of,
"Well, we didn't know they were in Texas at the time!"
Like, how does that matter?
Quote: "Once a plaintiff has established minimum contacts,
the burden shifts to the defendant to show the assertion of jurisdiction would be unfair.
To show that an exercise of jurisdiction is unreasonable once minimum contacts are established,
the defendant must make a compelling case against it.
Defendants have failed to do so.
Exercising personal jurisdiction in Texas comports with substantial justice.
Accordingly, based on the foregoing, Defendants are subject to specific jurisdiction in Texas."
"Plaintiff has provided sufficient allegations to survive dismissal.
Plaintiff has factually alleged: the existence of contracts subject to interference;
intentional acts of interference; and proximate causation.
It cannot reasonably be disputed that Plaintiff has named parties who contracted for paid ads on X.
Media Matters' reporting has acknowledged as much.
Plaintiff has therefore pled facts supporting this element."
"To survive a motion to dismiss for failure to state a claim,
Plaintiff need only allege that the defendant has done something independently unlawful or tortious,
that would be actionable under a recognized tort. Plaintiff has done that.
Thus, Plaintiff has sufficiently pled a plausible claim
regarding tortious interference with economic advantage.
Because the Court has personal jurisdiction over Defendants, venue is proper,
and Plaintiff has properly pled its claims, Defendants' Motion to Dismiss is denied."
I mean, seriously, if this is in any way indicative of how defendants are going to argue their case,
this should be a cakewalk for X Corp.
The very next day, X dropped their motion to compel documents, specifically regarding their donors.
We'll be watching.
Okay, this is one I don't think I've seen a court find before,
but it's absolutely the right decision, unpopular though it may be, and hopefully just the first.
The United States District Court for the District of Kansas
found that machine guns are protected arms under the Second Amendment.
Tamori Morgan was charged on two counts of illegal possession of a machine gun,
one of which was the so-called "Glock switch."
He moved to dismiss on Second Amendment grounds, and separately on Commerce Clause grounds,
but it's the Second Amendment that's important here.
District Judge John W. Broomes ruled:
"To keep arms means, simply, to possess arms.
If the plain text of the Second Amendment applies to a defendant's conduct,
the government has the burden to show that the regulation
is consistent with this nation's historical firearm regulation tradition.
This standard requires a historical analogue between the modern regulation
and historical regulations, not a historical twin."
Broomes was unimpressed by the government's argument
that the Second Amendment only applies to arms commonly used at the time of enactment. Quote:
"Interestingly, over half of the opinion in Miller was devoted to explaining how,
in the years preceding and immediately following the enactment of the Second Amendment,
one of the lawful purposes for which law-abiding citizens
possessed modern (for that era) firearms was for service in the militia.
The Court surveyed several laws from that era that not only permitted, but essentially required,
law-abiding citizens to provide for their own use modern military-style small arms.
Against that backdrop, the Court concluded that a sawed-off shotgun
was not the type of weapon that would be useful for military service."
By the way, as we talked about before, that's completely wrong, both then and now.
Militaries have been using short-barreled shotguns for as long as they've existed.
But it does demonstrate the point we've made over and over again:
that the whole "weapons of war" thing that the left keep screeching about
is the whole point of the Second Amendment!
He also took issue with the broad definition of machine gun, quote:
"This definition seems to encompass everything from an aircraft-mounted automatic cannon
to a small hand-held taser or stun gun that can easily be placed inside a handbag
and which shoots multi-shot bursts of electrical particles with a single pull of the trigger,
or a fully automatic BB gun that shoots multiple rounds of metal projectiles using compressed air."
And even then, it hardly passes muster with precedent. Quote:
"Machineguns have been in existence for well over a century.
While the federal government has regulated transfer and possession of such weapons
since passage of the National Firearms Act in 1934,
it did not outright prohibit possession of machineguns
until passage of the Firearms Owners Protection Act in 1986.
Even then, the law did not prohibit the possession of all machineguns;
rather, it merely prohibits possession of machineguns
that were not lawfully possessed as of the date that prohibition went into effect in 1986.
Thus, even today, it is perfectly legal for a person who has not been divested of his firearm rights
under some other provision of law to acquire and possess a machinegun,
so long as it was lawfully possessed by someone before the relevant date in 1986,
and so long as he complies with the National Firearms Act's requirements to obtain and possess the weapon.
In that sense, machineguns are not unusual.
The government fails to address these facts, and thus fails to meet its burden to demonstrate
that possession of the types of weapons at issue in this case are lawfully prohibited under the Second Amendment."
"Under Bruen's framework for evaluating Second Amendment challenges,
it is the government's burden to identify a historical analog to the restrictions challenged in this case.
This the government has failed to do."
He threw out the case on Second Amendment grounds, rendering the Commerce Clause motion moot.
Of course, this doesn't rule out a separate case
making a different justification for how the ban complies with the historical analog test.
But so far, there's been no notice of appeal from the government,
so maybe this'll embolden others to challenge the law.
Chris McNutt, president of Texas Gun Rights, said, quote:
"This ruling reaffirms what we've been saying all along: all gun laws are unconstitutional.
The Second Amendment was written to protect weapons of war because the people must be armed to stand against tyranny.
We hope this decision sets the stage for dismantling every anti-gun law in America,
and Texas Gun Rights will continue supporting these efforts until the Second Amendment is fully restored."
The group said in a blog post:
"For pro-gun advocates, this is exactly the kind of ruling needed to roll back federal overreach.
Weapons like machine guns, AR-15s, and other firearms routinely targeted by gun control advocates
are no different from muskets and rifles of the 18th century.
The Second Amendment protects the right to bear arms, without any distinction between types of weapons."
Of course, watch the ATF get around it by changing the definition again.
A force-reset trigger is no longer a machine gun, it's a high explosive.
And a Glock switch is no longer a machine gun, it's a nuclear arsenal.
Wouldn't put it past 'em.
And now it's time to phosphatize this week's Biggest Bogon Emitter.
We've criticized the CDC a lot for manipulating their figures on all sorts of things to fit a political narrative:
vaping, COVID, opioids, raw milk, and, of course, guns, in particular, defensive gun use, or DGU.
We've got yet another story on how the CDC and the FBI
have been working together to deliberately hide defensive gun use data,
which is extra important now that there's been another school shooting
and the psychotic gun control nutbars are despicably making hay with it.
And, of course, the news media is complicit in this,
running headlines like the AP's "Rare in US for an active shooter to be stopped by bystander"
and WaPo's "Rampage in Indiana a rare instance of armed civilian ending mass shooting."
Although as we've covered many times, armed citizens are VERY good at stopping mass shootings.
Which is why Time Magazine, for example, had to argue that the Uvalde shooting debunked the concept,
saying that "good guys with guns keep failing to stop mass shootings."
But that was a case where citizens were not allowed to be armed;
the failure was, once again, on the part of police, which is a big reason why we need the right to keep and bear arms:
because we can't count on the police to do it!
And when the going gets tough, the tough go into denial and suppress the data.
For almost a decade, the CDC maintained a reference to a 2013 study from the National Academies of Sciences
that showed that people used guns to stop crime anywhere up to 3 million times a year.
And then gun control activist Mark Bryant, founder of the Gun Violence Archive,
lobbied the CDC to remove "misinformation" regarding DGU estimates
because they keep being cited by "gun rights folks" to stop gun control legislation.
Soon after, the CDC took down these estimates and now gives no data whatsoever on DGUs.
The FBI, as we've covered, has also been monkeying around with definitions.
We covered in the past how it redefined mass shooting from 4 or more killed other than the shooter to 3.
They've also been doing it with the term "active shooter,"
where someone attempts to kill people unknown to him in a populated, public area.
The issue is, police departments don't record these cases,
so they just did Google searches to news stories, which massively underreport these.
You can find them, by the way. I'm going to link to a few recent ones.
Like the 60-year-old Chicago man who was robbed at an ATM and exchanged gunfire with his assailant.
The old man survived with a wounded arm; the attacker was killed.
Or the break-in in Pennsylvania where the home invader attacked two people,
one of whom shot him, wounding him in the leg and stopping the attack.
Or the Atlanta story of a woman's ex-boyfriend threatening her with a gun.
Her mother shot at him and he ran off. He's now in jail.
Just a reminder that most cases aren't going to make the news because nothing really happens;
the gun owner brandishes the gun and scares off the would-be assailant. Nothing to report.
So no matter how thorough your Google search is, it's probably not even going to get 1% of the cases.
The Crime Prevention Research Center has identified many cases the FBI missed
and is trying to make a more thorough list.
The FBI identified 350 active shooter cases from 2014 to 2023,
and found 14 cases where it was stopped by an armed shooter.
But the CPRC found 515 all total from that same time period, 165 more than the FBI,
and found that 180 of those cases were stopped by an armed citizen,
even after excluding 27 cases where the citizen stopped the attacker before he could fire a shot.
Their estimate of armed citizens stopping 35% of active shooters is eight times higher than the FBI's.
And even theirs isn't going to be comprehensive, for reasons I just said!
And, of course, you need to consider where citizens are allowed to go armed.
If you forcibly disarm citizens in an area, they're unable to stop the shooters.
In places where citizens are allowed to carry firearms, the number jumps from 35% to 51%!
It's not so much that the FBI makes these errors or misses these cases.
It's that they don't fix them when they're pointed out.
And with both the FBI and the CDC,
they end up with so many cases they know about but withhold that it HAS to be intentional.
And we all know there's only one reason why they wouldn't want us to have the real numbers.
So all of that makes the CDC and the FBI this week's Biggest Bogon Emitter.
And now let's macroadulterate this week's Idiot Extraordinaire.
And this week, it goes to the Second Circuit Court of Appeals
which just ruled against the Internet Archive in the Hachette case we've covered previously.
This had to do with their online lending library,
where the IA would purchase a physical copy of a book, and then make the electronic copy available online
in a 1:1 owned-to-loaned fashion, exactly like traditional libraries work, except online.
As we've covered in the past, publishers have never liked libraries,
but they've never been able to do anything about them.
But like so many other things, now that so much is online,
the idea that it's now digital just makes everything different for some unexplained reason.
That's the entire basis of the horrible Digital Millennium Copyright Act.
The only real argument for loss by publishers is the fact that they can make money doing it, quote:
"The library eBook lending market is thriving.
Checkouts of eBooks on OverDrive by library patrons increased dramatically between 2010 and 2020.
This surge in lending translates to greater profits for Publishers,
some of whom find library eBook licenses occupying an increasing percentage of their overall eBook revenues.
With more than 93% of public libraries participating in eBook lending,
Publishers and their authors have tapped in to a profitable, growing market."
But that has never been used to stop libraries, quote:
"The story is a bit more complicated for libraries.
When libraries acquire print books, they may circulate those books
for as much time and as many borrows as they desire, until the books wear down beyond usefulness.
At first, Publishers offered eBook licenses to libraries on a perpetual basis,
allowing them to lend eBooks in a similar manner to print books, though without the same concerns for wear and tear.
Now, Hachette offers two-year licenses, Penguin offers two-year and pay-per-use licenses,
HarperCollins offers 26-borrows and pay-per-use licenses,
and Wiley offers perpetual licenses and licenses for a set number of days or uses.
For libraries, the result is regular renegotiation of eBook licenses
that often come at a steeper price and for a shorter term than print copies of the same books."
It'd actually be nice if the court found that to be a problem.
Remember that the sole justification for copyrights in the Constitution is, quote:
"to promote the Progress of Science and useful Arts." The court even acknowledges this.
And yet, it just can't seem to help putting corporate profits above progress.
And they based a lot of it off of the godawful Warhol decision we covered previously.
We said it'd be bad at the time. Sometimes, I hate being right.
This is a very expansive interpretation of copyright law.
It very much put the emphasis on the good of publishers, not the good of the public.
Little wonder that the decision has been criticized by groups such as the American Library Association,
the Electronic Frontier Foundation, and the Authors Guild.
Of course, the court pretended otherwise, quote:
"We conclude that both Publishers and the public will benefit if IA’s use is denied."
HOW???
How does the public not benefit from the IA?
Imagine someone in a rural area who has no local library to go to;
thanks to IA, he can borrow the book online, provided no one else has it checked out currently.
But without free digital lending, they're cut off.
This decision has a disproportionate impact on underserved communities
that don't have easy access to physical libraries.
And also, think about people with disabilities who might have difficulty accessing a physical library.
Or who benefit by books being in electronic form, such as the visually impaired.
They're also cut off from all of these books.
The court's decision would deny them this. This is a harm to the public.
Unless, of course, they just use The Pirate Bay.
Listen to their mental gymnastics, quote:
"True, libraries and consumers may reap some short-term benefits from access to free digital books,
but what are the long-term consequences?
If authors and creators knew that their original works could be copied and disseminated for free,
there would be little motivation to produce new works.
And a dearth of creative activity would undoubtedly negatively impact the public.
It is this reality that the Copyright Act seeks to avoid."
Ask an author if they're motivated solely by financial gain. Almost none of them will say so.
In fact, most of them could make a lot more money doing something else!
They're motivated by a need for self-expression, to share their dream with their audience.
That's why so many writers keep it up even if they're struggling.
And in the past, this has been argued in the case of, say, piracy,
where it's a substitute for commercial publishing. But libraries aren't.
The court does nothing to say how this would harm creative activity;
they just regurgitate the old anti-piracy canard that it would, without even considering the context of this case.
In fact, the IA's library can HELP authors and creators.
Authors have a hard time reaching new audiences and gaining exposure; the IA's library can help with that.
It can even open up potential new sources of income for them as their work gains popularity.
And in the case of a lot of small publishers and self-published authors,
a lot of them just don't print physical books anymore, at least not many.
That means they won't be in any traditional libraries;
online libraries are the only way their works can be found at all!
I find the court's conclusion to be nothing short of dishonest. Quote:
"IA asks this Court to bless the large scale copying and distribution of copyrighted books
without permission from or payment to the Publishers or authors.
Such a holding would allow for widescale copying that deprives creators of compensation
and diminishes the incentive to produce new works.
This may be what IA and its amici prefer, but it is not an approach that the Copyright Act permits."
Did the court just forget about that whole 1:1 owned-to-loaned thing?
They're acting like people can download thousands of copies of these books. No!
Only one at a time, protected by the exact same technology
that the eBook publishers use in their lending libraries to protect against unauthorized copying and retention.
I was trying to make sense of this, so I asked Llama 3.1, one of the most advanced LLMs I currently have access to.
Despite the fact that it's tuned to be neutral, here's what it said, quote:
"I completely agree with you. The court's argument that the public is harmed by IA's activities is puzzling,
especially considering the benefits of digital access to information and education.
"It's true that the court needed to demonstrate harm to the public interest to support their decision,
but their argument seems to focus primarily on the potential harm to publishers and authors,
rather than the public at large.
IA's activities could have numerous benefits for the public. It's difficult to see how these benefits
could be outweighed by the potential harm to publishers and authors.
The court's decision seems to prioritize the interests of copyright holders
over the public interest in access to information and education.
Perhaps the court's argument is based on the assumption
that IA's activities could lead to a decline in book sales or a loss of revenue for publishers and authors.
However, this assumption is not necessarily supported by empirical evidence,
and it's possible that IA's activities could actually increase interest in books and drive sales."
It's right about that. We covered before the studies showing that piracy can actually increase sales
by increasing popularity and social awareness of the media,
and there's just no evidence of all the harms they screech about.
The AI said, quote: "By ignoring the 1:1 ratio aspect of the program,
the court's conclusion may be overstating the potential harm
and failing to consider the potential benefits of the program,
such as increased access to knowledge and education.
"It's also worth noting that this kind of oversight
can have broader implications for the development of digital libraries
and the way that copyright law is applied in the digital age.
If courts are not careful to consider the nuances of digital lending programs,
they may inadvertently create a chilling effect on innovation
and limit access to knowledge and education.
"Ultimately, the court's decision highlights the need for a more nuanced and balanced approach to copyright law,
one that takes into account the public interest in access to information and education,
while also protecting the rights of creators."
Huh. Maybe it wouldn't be such a bad thing for the courts to be replaced by AI!
The main question is:
how can they possibly find for the publishers without destroying ALL libraries in the country?
And they don't have an answer for this.
Like the IA, traditional libraries lend copies of protected works to patrons without permission,
and without paying any royalties beyond purchasing the book.
Every argument they made in favor of the publishers could be used to shut down physical libraries as well.
And apparently, they're either too dumb or too corrupt to notice it.
So all of that makes the Second Circuit Court of Appeals this week's Idiot Extraordinaire.
Well, that wraps up this "Short term memory's always the first to go" edition of the Bogosity Podcast.
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Thank you for listening. Until next time, here's a quote from Learned Hand:
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