If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
Comrade Trump continues his unbroken streak of destroying the American empire's grip on the world, hastening the renewables transition, de-dollarizing global trade, and killing the world's suicidal habit of entrusting its digital life to America's defective, enshittified tech exports:
But Comrade Trump's ambitious praxis knows no bounds. Now, he's helping to remake the Democratic Party as a muscular opposition with a serious commitment to workers' interests over billionaires. It's not merely that Trump has empowered the primary campaigns of leftist Democrats facing down corporate, AIPAC-backed sellouts:
He's also stiffening normie sellout Democrats' spines, forcing them to confront the stark choice between socialism and barbarism! And Dem leaders don't come more normie sellout than Cory "Big Pharma" Booker, a disgrace to Corys everywhere:
Nevertheless, that very same (lesser) Cory has introduced legislation to unwind every illegal, corrupt merger that the Trump administration has waved through:
Under the Correcting Lapsed Enforcement in Antitrust Norms for Mergers (CLEAN Mergers) Act, any company that was acquired in a deal worth $10b or more will have to break up with its merger partner if it turns out that these mergers were "politically influenced." "Politically influenced" sums up every major merger under the Trump II regime:
You could be forgiven for assuming that this is just about reining in Wall Street greed, but that it isn't an especially political maneuver. That's not true: antitrust is the most consequentially political regulation (with the possible exception of regulations on elections). Every fascist power defeated in WWII relied on the backing of their national monopolists to take, hold and wield power. That's why the Marshall Plan technocrats who rewrote the laws of Europe, South Korea and Japan made sure to copy over US antitrust law onto those statute-books (that's also why the tech antitrust cases brought in Europe could be re-run in South Korea and Japan – their laws are all substantively similar, because they were harmonized with US antitrust in the 1950s):
Fascism and monopolies go hand in hand, and smashing monopolies is key to the program of fighting fascism. After defeating fascism in the mid-20th century, the Allies oversaw a program of "denazification," starting with the Nuremberg trials:
https://en.wikipedia.org/wiki/Nuremberg_trials
Inspired by those trials, I've proposed that Congressional Dems could form a "Nuremberg Caucus" that would publicly promise sweeping plans to denazify America after Trump and his allies have been swept from power:
The centerpiece of the Nuremberg Caucus playbook is a set of ready-to-file, public indictments against Trump officials who have violated the law, the Constitution, and the rights of the people of the USA. Dems should create and maintain a docket with exhibits and witness lists that gets updated every time one of these crooks runs their big, stupid mouths on Fox News or OANN or Twitter. The Nuremberg Caucus could even set dates for the trials of officials, with judicial calendars for each federal courtroom, starting on January 21, 2029.
The idea here is to both demoralize Trump's collaborators and to stiffen the spines of the Democratic base who will have to be convinced that turning out for the coming elections, and defending them, will mean something, delivering the change and hope they've been promised since the Obama campaign, but which has never materialized.
While trials and punishment for Trump's fascist goons are at the center of the Nuremberg Caucus plan, that's not all of it. The plan also calls for publicly announcing the intention to unwind every corrupt merger that was consummated under Trump. This serves two purposes: first, it promises the electorate that the monopolists who steal from them will face consequences for their crimes; but second, it also puts investors on notice that any gains from corrupt mergers will turn into massive losses once the next administration orders these companies to unscramble the inedible omelets they're cooking up, no matter what the cost.
That's exactly what Booker's CLEAN Mergers Act – cosponsored by Elizabeth Warren (D-MA), Martin Heinrich (D-NM), Chris Murphy (D-CT), and Mazie Hirono (D-HI) – does. I don't think that Booker is listening to me, but I do think that Dems who are willing to introduce this kind of legislation can be cajoled, coerced and sweet-talked into more ambitious Nuremberg Caucus actions.
For example, there could not be a better time to announce plans to unrig the Supreme Court, which has just gutted the Voting Rights Act:
The Supreme Court's legitimacy has been burned to the ground, and Trump's chud justices are pissing on the ashes. Packing the court is a very good idea:
Which is why I included it in the Nuremberg Caucus plan. But packing the court is just table stakes. In his latest video, Jamelle Bouie lays out a detailed plan for denazifying the Supreme Court:
https://www.youtube.com/watch?v=SRzS61buXkQ
As Bouie points out, "as long as John Roberts has his majority, nothing the left of center in this country wants to do is safe or stable…We can have democracy and self-government in this country or we can have the Supreme Court as it exists, but we cannot have both."
But packing the court – while a good place to start – isn't enough. Per Bouie, the problem isn't just the court's corruption – it's how powerful the court is. Article 3, Section 2 of the Constitution permits Congress to "jurisdiction strip" the Supremes: Congress can pass a law taking voting rights and racial discrimination away from the Supreme Court's jurisdiction. Congress can impose ethics reforms on the court, banning justices from taking bribes (I can't believe I have to type these words).
Congress can turn the Supreme Court's current building into a museum and move the Supreme Court back into its original home in Congress's basement. Congress can take away the Supremes' ability to select their clerks or which cases they hear. All the Constitution says is that there must be a Supreme Court, and it must adjudicate "disputes between states, disputes involving ambassadors, impeachments, that kind of thing." Everything else is up to Congress to grant or withhold from SCOTUS.
This is very good Nuremberg Caucus stuff. It would be an amazing campaign promise for anyone primarying a shitty normie Dem in the midterms: "Vote for me, and I will be part of the legislative movement to make the Supreme Court weaker and thus more accountable."
Now, as much as I like this, I'm really holding out for a Dem to go with my big ICE-melting idea: promising million-dollar bounties for ICE officers who rat out their buddies for violating the law:
ICE agents are signing up with the promise of $50k hiring bonuses and $60k in student debt cancellation. That's peanuts. The Nuremberg Caucus could announce a Crimestoppers-style program with $1m bounties for any ICE officer who a) is themselves innocent of any human rights violations, and; b) provides evidence leading to the conviction of another ICE officer for committing human rights violations. That would certainly improve morale for (some) ICE officers.
As I wrote in February:
Critics of this plan will say that this will force Trump officials to try to steal the next election in order to avoid consequences for their actions. This is certainly true: confidence in a "peaceful transfer of power" is the bedrock of any kind of fair election.
But this bunch have already repeatedly signaled that they intend to steal the midterms and the next general election:
ICE agents are straight up telling people that ICE is on the streets to arrest people in Democratic-leaning states ("The more people that you lose in Minnesota, you then lose a voting right to stay blue"):
The only path to fair elections – and saving America – lies through mobilizing and energizing hundreds of millions of Americans. They are ready. They are begging for leadership. They want an electoral choice, something better than a return to the pre-Trump status quo. If you want giant crowds at every polling place, rising up against ICE and DHS voter-suppression, then you have to promise people that their vote will mean something.
I don’t necessarily agree with all of these suggestions, but I do think that the core of it is solid: right now, the Republicans are very unpopular because they keep doing things the public hates, and the Democrats are unpopular because they keep letting the Republicans get away with it. Forming a coalition of Democratic congresspeople who are vocal and willing to ensure that their conservative colleagues don’t get away with this is crucial to victory in the future, and even starting with just a few will form a nucleus that the rest will inevitably start coalescing around.
That being said, I still think that the Democrats, if they take any of these ideas to heart, should not call themselves “the Nuremberg Caucus”. It’s a good, colorful shorthand to get the rest of us excited, but it’s also just a little too blatant for the average American to handle. Argument under the break:
As I laid out in a previous comment a few months ago, the real brilliance of this plan is that it’s a delicious-looking poison for the Republicans — they’re currently trying to find any remaining platform they can use to make themselves look good, and they’re failing hard at it. Currently, their plan is clearly just lying blatantly: they support monopolies while claiming it will provide choice for the people, they gut the Civil Rights Act while espousing how their actions will promote racial unity, and they start pointless wars that they claim are simultaneously over and still happening. But those lies aren’t working anymore, and average Americans are noticing! The Republicans, ironically, are in need of something true to rally around — so if the Democrats start talking openly about punishing their collaborators and prosecuting every crime that’s been committed by these MAGA thieves, they will latch onto that like drowning rats. “Vote for us, or the Democrats will impeach the president!” will become their chief rallying cry, while the Democrats will counter with “yes, we will impeach him, and undo all the harm he’s done!”.
The chief Republican strategy in the time of MAGA has been to target vulnerable communities to put the Democrats on the defensive, then claim that the Democrats care more about minorities than “the real issues” (e.g. gas prices, grocery prices, etc). The Democrats haven’t had a good counter to this, because abandoning those communities will erode their own support, and the Republicans don’t give a shit about protecting anyone other than themselves. But if the Democrats steal the strategy by putting the Republicans themselves on blast, then they’ve got a fighting chance: the Republicans are forced into defending their own actions above all else, and the Democrats can then hammer them on those same “real issues” the Republicans have scuppered with said actions.
My problem with the Nuremberg Caucus is simply that the name is too on the nose: it’s an explicit comparison between Republicans and the Nazis, and that would provide the Republicans with a little bit of live ammo amid a case full of duds. If they can turn the argument from “the Democrats want to put us on trial because of all those crimes we committed” into “the Democrats are calling us Nazis, but we’re not Nazis!”, they can win that debate because, technically speaking, they are NOT the Nazis. The Republicans adore technicalities: they may blindly worship a loudmouth demagogue with a bad haircut, demonized minorities whom they locked up in concentration camps, wear red clothing items to show their support for the party above all else, and had a guy literally perform a Nazi salute at the inauguration… but since they are not literally calling themselves Nazis, they can and will excuse everything to the public as coincidence, and sue anyone who says otherwise. For this to work, the Democrats cannot play the part of avengers or renegades: they need to be concerned citizens, fighting back against corruption out of love for the people of their country.
I don’t really have an alternative name for the caucus, but I have two other recommendations: no cheeky acronyms, and it needs to be called something so blatant that the Republicans sound stupid for fighting it. The congressional obsession with slick acronyms often comes across as unserious, an obsession with political theater above all else, and giving a vital plan such as this one would give Republicans fodder to accuse the Democrats of playing games while providing the Democrats no real benefit beyond smug satisfaction. Drop it. As for the second, the name needs to be something easy to remember that lends itself to ironic headlines as Republicans inevitably rail against it. The Consequences for Corruption Caucus, for instance, could lead to some good ones:
“THEY WANT TO DESTROY US”: Speaker Johnson Rails Against Consequences
TRUMP DEMANDS CONGRESS SAY “NO” TO CONSEQUENCES
See what I mean?
Whatever happens, the Democrats need to start going on an offensive built by the people, for the people. The only way out is together.
Angelenos! I’ll be at the Los Angeles Festival of Books TOMORROW (Apr 19) for a panel called “Nature or Nurture: How Humans and AI Are Changing Each Other” with Adam Becker, Joanne McNeil, and Lucas Cantor Santiago.
Nearly 25 years ago, in the aftermath of Bush v Gore, I got involved in a bunch of ugly tech policy fights over voting machines. The hanging chad debacle in Florida prompted Congress to appropriate funds for states to purchase new touchscreen voting machines based on a robust, open standard. The problem was, those machines didn't exist.
The voting machine industry in those days was already very consolidated (it's far more consolidated today). They went shopping for a standards body that would publish a spec for a "standard" voting machine that could soak up those federal dollars in time for the 2004 election. The only taker was the IEEE, who unwisely offered to serve as host for this impossible rush job.
Once the voting machine reps were around a table at IEEE – largely sheltered from antitrust scrutiny thanks to the broad latitude enjoyed by firms engaged in standardization, which is otherwise uncomfortably close to collusion – they admitted what everyone already knew: there was zero chance they were going to develop a new standard in time for the election.
Instead, they decided they were going to publish a "descriptive standard." Rather than designing a new standard, they'd write down the specs of their own products – the same products that were considered so defective they needed to be replaced before the election – and call that the standard.
That was my first encounter with this issue as an activist. I had just started at EFF and a lot of our supporters were IEEE members, who were appalled to see their professional association being used to launder this incredibly politically salient, technically incoherent scam. We got a ton of IEEE members to write to the board, who shut down the standards committee and kicked the voting machine companies to the curb.
The voting machine companies weren't done, though. Diebold – one of the leaders in the cartel – knew that its voting machines were defective. They'd crash, lose their vote-counts and malfunction in other ways that were equally damaging to election integrity.
This was an alarming piece of news, but perhaps just as alarming is the way it came to light. A Diebold employee described this situation in a memo that was subsequently hacked and dumped by parties unknown. That memo, along with the accompanying tranche of extremely alarming revelations about Diebold's voting machine division, was the subject of one of the first mass-censorship copyright campaigns in internet history.
Diebold didn't dispute the veracity of these damning revelations: rather, it claimed that since the memos detailing its gross democracy-endangering misconduct had been prepared by an employee, that they were therefore works-made-for-hire whose copyright was held by Diebold, and thus anyone who reproduced the memo was infringing on the company's copyright.
Under Section 512 of the then-new Digital Millennium Copyright Act, Diebold was empowered to send "takedown notices" to the web hosting providers whose users had posted the memos, and if the web hosts didn't remove the content "expeditiously," they would be jointly liable for any eventual copyright damages, which are statutorily set at $150,000 per infringement.
Every web host folded. No one wanted to take the risk of tens of millions of dollars in statutory damages.
(Incidentally: anyone who tells you that "online safety" requires us to make online platforms liable for their users' speech needs to explain how this wouldn't empower every crooked company whose dirty laundry had ended up online wouldn't just do what Diebold did. It's not technically insanity to do the same thing over again in expectation of a different outcome, but it is awfully stupid and reckless.)
That might have been the end of things, except for the kids at Swarthmore, a small liberal arts college in Pennsylvania. Two students, Nelson Pavlosky and Luke Smith, were outraged by Diebold and they had accounts on Swarthmore's webserver. So they uploaded thousands of copies of the leaked memos, but linked to just one of them from a page about the leak. As soon as that copy was deleted by Swarthmore's webmasters in response to a DMCA takedown from Diebold, the students updated the link to point to another copy. And another. And another.
That's where EFF got involved. We repped the Online Policy Group, whose page linking to the Swarthmore resources was taken down by a Diebold notice. We won. The memos became a matter of public record. The Swarthmore kids started a nationwide network called "Students for Free Culture." It was pretty danged cool.
That wasn't the end of the Diebold story, though. Diebold was and is a very diversified conglomerate that made a lot of tabulating machines: ATMs, cash-registers, medical monitoring devices…and voting machines. Every one of these machines produced a paper-tape of its tabulations as an audit trail that could be used to reconstruct its calculations if it crashed…except the voting machines. The voting machines that kept crashing, and whose crashes presented a serious risk to the legitimacy of US elections in the wake of the worst electoral crisis in the country's history.
Diebold's stated reason for this was that adding a paper tape was haaaard (even though all its other machines had paper audit tapes). Not only was this a very unconvincing excuse, it was downright alarming in light of the promise of Walden O’Dell (Diebold CEO and prominent Bush fundraiser) to help "Ohio deliver its electoral votes to the president":
Now, to be clear, I don't think that O'Dell was going to steal the election for Bush (that's the Supreme Court's job). Rather, he was just a loudmouth asshole CEO who supported the (up to that point) worst president in American history, and who also made garbage products that were not fit for purpose.
In the decades since, voting machines have been the subject of lots of scrutiny by the information security community, because they suck. Time after time, the most sphincter-puckering defects in widely used machines have come to light:
At Defcon, the amazing Matt Green has presided over the Voting Village, where it's an annual tradition for hackers to probe voting machines. This exercise has produced a string of terrifying revelations that precisely described how these machines suck:
https://www.votingvillage.org/cfp
Pretty much everyone I knew thought that voting machines were garbage technology…right up to the moment that the My Pillow guy, Tucker Carlson, and a whole menagerie of conspiratorial Trumpland mutants started peddling a bizarre story about how Hugo Chavez colluded with the Canadian voting machine company Dominion Voting Systems (who bought Diebold's voting machine business when they finally dumped the division) to rig the 2020 election for Joe Biden. They told so many outlandish lies about this that Fox ended up paying Dominion $787.5 million to settle the case:
That's when something very weird happened. A bunch of people who had been skeptical of voting machines since the Brooks Brothers Riot suddenly became history's most ardent defenders of those same garbage voting machines. The cartel of voting machine companies – who had a long track record of using bullshit legal threats to silence their (mostly progressive) critics – were drafted into The Resistance(TM), and anyone who thought voting machines were trash was dismissed as a crazy person who has been totally mypillowpilled:
There's a name for this: it's called "schismogenesis": when one group of people define themselves in opposition to someone else. If the other team does X, then your team has to oppose X, even if you all liked X until a couple minutes ago:
This schismogenic reversal persists to this very day. Every time Trump promotes another election denier to his cabinet, a federal agency, or a judgeship, the idea that voting machines are garbage becomes more Stop the Steal-coded, even though voting machines are, objectively, garbage.
Which is bad. It's bad because we are going into another election season where the stakes are – incredibly – even higher than Bush v Gore, and electoral authorities and state legislatures are making the world's most unforced errors in their voting machine procurement decisions, and if you've conditioned yourself to reflexively dismiss voting machine criticisms as conspiratorial nonsense, then you are part of the problem.
Just because some voting machine criticism is conspiratorial nonsense, it doesn't follow that voting machines are good, nor does it follow that every voting machine critic is a swivel-eyed loon or ratfucking Roger Stone protege.
Take, for example, Princeton's Andrew Appel, a computer scientist who's been publishing well-informed, well-documented warnings about defects in voting machines for years and years. Appel's latest is an alarming note about Georgia's new plan to "tabulate" ballots using OCR software:
The Georgia legislature has wisely banned the use of QR codes on the paper ballots generated by touchscreen voting machines. We have, at long last, progressed to the point where we use "ballot marking devices" (BMDs) that produce a paper record that can be hand-counted. The problem is that voters barely ever glance at these paper ballots before dropping them in the box to make sure the choices they made on the touchscreen are correctly reflected on the ballot – only 7% of voters carefully inspect their ballots!
This problem is greatly exacerbated if these ballot papers are tabulated by a machine that reads a QR code or barcode, rather than interpreting the human-readable information on the ballot. People are even less likely to pull out their phones and scan the QR code to ensure it matches the words on the paper. That means that a BMD could output different choices in the QR code than it prints in the human-readable part – and the Dominion BMD machines they use in Georgia run outdated software that's super-hackable:
So Georgia's state leg passed Senate Bill 189, which establishes that "The text portion of the paper ballot marked and printed by the electronic ballot marker indicating the elector’s selection shall constitute the official ballot and shall constitute the official vote for purposes of vote tabulation." In other words, you can't count by scanning QR codes, you have to actually interpret the human-readable text on these ballots.
These machines still suck, to be clear (the fact that they don't suck for the mypillovian reasons that Tucker Carlson believes doesn't mean they're good) – but thanks to SB189, they are way less dangerous to democracy than they might be.
But not if Secretary of State Brad Raffensperger gets his way. Raffensperger is another guy who was drafted into The Resistance(TM) after he refused to commit election fraud for Trump, but he's also not good. He can still be terrible in other ways – and he is.
Raffensperger has announced his plan to circumvent the Georgia legislature by using Dominion ICX touchscreens to produce ballots with QR codes, which will then be tabulated in Dominion ICP scanners – but then he's going to "verify" the tabulation by running those same ballots through optical character recognition (OCR) software.
As Appel points out, this is the same stupid plan that Raffensperger tried in 2024, where he called the OCR step an "audit" of the QR tabulation. Back then, he grabbed 200dpi "ballot image files" from the Dominion BMDs and ran them through OCR software run by a company called Enhanced Voting. Appel sums up the fundamental incoherence of this approach.
First, the BMDs are super-hackable, so we don't trust them to print the same info in the QR code as they print in the human-readable text (which no one looks at anyway). If we don't trust them to print accurate info in the QR code, then why would we trust them to accurately generate that 200dpi QR code that's generated for the audit? As Appel writes, "it would be fairly easy for an unsophisticated attacker to alter ballot-image files–just replace the ballots they don’t like with copies of the ones they do like."
Then there's the step where these files are zipped up and transferred to the outside vendor for the audit – a step that Raffensperger has not explained. And even if the files make it to the outside contractor safely, that contractor could "change the inputs (ballot images) or outputs (tabulations)."
So this is very bad. Voting machines suck. Raffensperger sucks.
And here's the stupidest part: as Appel explains, there is a much more secure way to do this, and it's very cheap:
Just use their existing Dominion ICP (polling-place) scanners to count preprinted, hand-marked optical-scan "bubble ballots" that the voter has marked with a pen.
This is what other states are doing. As Appel writes, "This doesn’t even require a software upgrade of any kind. Although it would be a fine idea to install a software upgrade that addresses known security vulnerabilities in the ICX and ICP, the ICP can count hand-marked ballots with or without the upgrade."
This is a purely unforced error, in other words. As such, it's part of a series of shitty vote-tech choices that politicians and officials have been making since Bush v Gore. Truly, we live in the stupidest timeline.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
Nothing I've seen in my reading, years of personal experience working in software, or from my partner's 3+ decades professionally developing software would lead me to trust any software company even half as far as I could throw it.
Even before "vibe coding," software development was rushed and messy, with management insisting on impossible deadlines and constantly cutting resources for testing and quality control, increasingly pushing that off onto the paying customer. Or their paying customers' paying customers.
Now that AI is writing so much of our code?
hahahahahahahahahahahahahahahahaha.....yeah.
Missouri has many problems, but at least we still use paper ballots.
“My monolithic expectation of what a woman’s body was supposed to look like had no bearing on what actually happened to my body. The two things were wholly unrelated. I never became the woman I imagined.”
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
What if there was a way for a business to transform any conduct it disliked into a felony, harnessing the power of the state to threaten anyone who acted in a way that displeased the company with a long prison sentence and six-figure fines?
Surprise! That actually exists! It's called Section 1201 of the Digital Millennium Copyright Act, the "anticircumvention" clause, which establishes five-year sentences and $500k fines for anyone who bypasses an "effective access control" for a copyrighted work.
Let's unpack that: every digital product has a "copyrighted work" at its core, because software is copyrighted. Digital systems are intrinsically very flexible: just overwrite, augment, or delete part of the software that powers the device or product, and you change how the product works. You can alter your browser to block ads; or alter your Android phone to run a privacy-respecting OS like Graphene; or alter your printer to accept generic ink, rather than checking each cartridge to confirm that it's the original manufacturer's product.
However, if the device is designed to prevent this – if it has an "access control" that restricts your ability to change the software – then DMCA 1201 makes those modifications into crimes. The act of providing someone with a tool to change how their own property works ("trafficking in circumvention devices") is a felony.
But there's a tiny saving grace here: for DMCA 1201 to kick in, the "access control" must be "effective." What's "effective?" There's the rub: no one knows.
The penalties for getting crosswise with DMCA 1201 are so grotendous that very few people have tried to litigate any of its contours. Whenever the issue comes up, defendants settle, or fold, or disappear. Despite the fact that DMCA 1201 has been with us for more than a quarter of a century, and despite the fact that the activities it restricts are so far-reaching, there's precious little case law clarifying Congress's vague statutory language.
When it comes to "effectiveness" in access controls, the jurisprudence is especially thin. As far as I know, there's just one case that addressed the issue, and boy was it a weird one. Back in 2000, a "colorful" guy named Johnny Deep founded a Napster-alike service that piggybacked on the AOL Instant Messenger network. He called his service "Aimster." When AOL threatened him with a trademark suit, he claimed that Aimster was his daughter Amiee's AOL handle, and that the service was named for her. Then he changed the service's name to Madster, claiming that it was also named after his daughter. At the time, a lot of people assumed he was BSing, but I just found his obituary and it turns out his daughter's name was, indeed, "Amiee (Madeline) Deep":
Aimster was one of the many services that the record industry tried to shut down, both by filing suit against the company and by flooding it with takedown notices demanding that individual tracks be removed. Deep responded by "encoding" all of the track names on his network in pig-Latin. Then he claimed that by "decoding" the files (by moving the last letter of the track name to the first position), the record industry was "bypassing an effective access control for a copyrighted work" and thus violating DMCA 1201:
The court didn't buy this. The judge ruled that pig Latin isn't an "effective access control." Since then, we've known that at least some access controls aren't "effective" but we haven't had any clarity on where "effectiveness" starts. After all, there's a certain circularity to the whole idea of "effective" access controls: if a rival engineer can figure out how to get around an access control, can we really call it "effective?" Surely, the fact that someone figured out how to circumvent your access control is proof that it's not effective (at least when it comes to that person).
All this may strike you as weird inside baseball, and that's not entirely wrong, but there's one unresolved "effectiveness" question that has some very high stakes indeed: is Youtube's javascript-based obfuscation an "effective access control?"
Youtube, of course, is the internet's monopoly video platform, with a commanding majority of video streams. It was acquired by Google in 2006 for $1.65b. At the time, the service was hemorrhaging money and mired in brutal litigation, but it had one virtue that made it worth nine figures: people liked it. Specifically, people liked it in a way they didn't like Google Video, which was one of the many, many, many failed internally developed Google products that tanked, and was replaced by a product developed by a company that Google bought, because Google sucks at developing products. They're not Willy Wonka's idea factory – they're Rich Uncle Pennybags, buying up other kids' toys:
Google operationalized Youtube and built it up to the world's most structurally important video platform. Along the way, Google added some javascript that was intended to block people from "downloading" its videos. I put "downloading" in scare-quotes because "streaming" is a consensus hallucination: there is no way for your computer to display a video that resides on a distant server without downloading it – the internet is not made up of a cunning series of paper-towel rolls and mirrors that convey photons to your screen without sending you the bits that make up the file. "Streaming" is just "downloading" with the "save file" button removed.
In this case, the "save file" button is removed by some javascript on every Youtube page. This isn't hard to bypass: there are dozens of "stream-ripping" sites that let you save any video that's accessible on Youtube. I use these all the time – indeed, I used one last week to gank the video of my speech in Ottawa so I could upload it to my own Youtube channel:
Now, all of this violates Youtube's terms of service, which means that someone who downloads a stream for an otherwise lawful purpose (like I did) is still hypothetically at risk of being punished by Google. We're relying on Google to be reasonable about all this, which, admittedly, isn't the best bet, historically. But at least the field of people who can attack us is limited to this one company.
That's good, because there's zillions of people who rely on stream-rippers, and many of them are Youtube's most popular creators. Youtube singlehandedly revived the form of the "video essay," popularizing it in many guises, from "reaction videos" to full-fledged, in-depth documentaries that make extensive use of clips to illuminate, dispute, and expand on the messages of other Youtube videos.
These kinds of videos are allowed under US copyright law. American copyright law has a broad set of limitation and exceptions, which include "fair use," an expansive set of affirmative rights to access and use copyrighted works, even against the wishes of the copyright's proprietor. As the Supreme Court stated in Eldred, the only way copyright (a government-backed restriction on who can say certain words) can be reconciled with the First Amendment (a ban on government restrictions on speech) is through fair use, the "escape valve" for free expression embedded in copyright:
https://en.wikipedia.org/wiki/Eldred_v._Ashcroft
Which is to say that including clips from a video you're criticizing in your own video is canonical fair use. What else is fair use? Well, it's "fact intensive," which is a lawyer's way of saying, "it depends." One thing that is 100% true, though, is that fair use is not limited to the "four factors" enumerated in the statute and anyone who claims otherwise has no idea what they're talking about and can be safely ignored:
Now, fair use or not, there are plenty of people who get angry about their videos being clipped for critical treatment in other videos, because lots of people hate being criticized. This is precisely why fair use exists: if you had to secure someone's permission before you were allowed to criticize them, critical speech would be limited to takedowns of stoics and masochists.
This means that the subjects of video essays can't rely on copyright to silence their critics. They also can't use the fact that those critics violated Youtube's terms of service by clipping their videos, because only Youtube has standing to ask a court to uphold its terms of service, and Youtube has (wisely) steered clear of embroiling itself in fights between critics and the people they criticize.
But that hasn't stopped the subjects of criticism from seeking legal avenues to silence their critics. In a case called Cordova v. Huneault, the proprietor of "Denver Metro Audits" is suing the proprietor of "Frauditor Troll Channel" for clipping the former's videos for "reaction videos."
One of the plaintiff's claims here is that the defendant violated Section 1201 of the DMCA by saving videos from Youtube. They argue that Youtube's javascript obfuscator (a "rolling cipher") is an "effective access control" under the statute. Magistrate Judge Virginia K DeMarchi (Northern District of California) agreed with the plaintiff:
Remember, DMCA 1201 applies whether or not you infringe someone's copyright. It is a blanket prohibition on the circumvention of any "effective access control" for any copyrighted work, even when no one's rights are being violated. It's a way to transform otherwise lawful conduct into a felony. It's what Jay Freeman calls "Felony contempt of business model."
If the higher court upholds this magistrate judge's ruling, then all clipping becomes a crime, and the subjects of criticism will have a ready tool to silence any critic. This obliterates fair use, wipes it off the statute-book. It welds shut copyright's escape valve for free expression.
Now, it's true that the US Copyright Office holds hearings every three years where it grants exemptions to DMCA 1201, and it has indeed granted an exemption for ripping video for critical and educational purposes. But this process is deceptive! The exemptions that the Copyright Office grants are "use exemptions" – they allow you to "make the use." However, they are not "tools exemptions" – they do not give you permission to acquire or share the tool needed to make the use:
Which means that you are allowed to rip a stream, but you're not allowed to use a stream-ripping service. If Youtube's rolling cipher is an "effective access control" then all of those stream-ripping services are wildly illegal, felonies carrying a five-year sentence and a $500k fine for a first offense under DMCA 1201.
Under the US Copyright Office's exemption process, if you want to make a reaction video, then you, personally must create your own stream-ripper. You are not allowed to discuss how to do this with anyone else, and you can't share your stream-ripper with anyone else, and if you do, you've committed a felony.
So this is a catastrophic ruling. If it stands, it will make the production of video essays, reaction videos, and other critical videos into a legal minefield, by giving everyone whose video is clipped and criticized a means to threaten their critics with long prison sentences, fair use be damned. The only people who will safely be able to make this kind of critical video are skilled programmers who can personally defeat Youtube's "rolling cipher." And unlike claims about stream-ripping violating Youtube's terms of service – which can only be brought by Youtube – DMCA 1201 claims can be brought by anyone whose videos get clipped and criticized.
Is Youtube's rolling cipher an "effective access control?" Well, I don't know how to bypass it, but there are dozens of services that have independently figured out how to get around it. That seems like good evidence that the access control is not "effective."
When the DMCA was enacted in 1998, this is exactly the kind of thing experts warned would happen:
And here we are, more than a quarter-century later, living in the prison of lawmakers' reckless disregard for evidence and expertise, a world where criticism can be converted into a felony. It's long past time we get rid of this stupid, stupid law:
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