Free Speech
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This is Spotify's fault.
I don't care that Spotify is an exclusive host for Joe Rogan's content. I don't care that they have committed themselves to be. I'm still a premium subscriber, point of fact. But in defending the decision to continue hosting Rogan, Spotify CEO Daniel Ek trotted out the statutorially illiterate platform/publisher distinction, and for that, I hope he suffers an eternity of brutal torment in the fiery pits of Hell.*
Jason is a ****ing idiot and Section 230 of the Communications Decency Act (because of course this is about Section 230 of the Communications Decency Act) very likely shields Spotify from liability for injury purported to be the result of misinformation it hosts. Of course that's assuming the misinformation Spotify hosts can reasonably be said to itself be injurious, and that's a very high threshold to clear. Misinformation itself is likely to be protected speech. When misinformation isn't protected, it's not because it's misinformation and it's every bit because it's injurious.
Regardless of any exclusivity deal or promotion, Spotify isn't the publisher of Joe Rogan's content because Joe Rogan is the publisher of Joe Rogan's content. Spotify isn't (or at least hasn't thus far been shown to be) involved in the production of Joe Rogan's content and so it doesn't have advance knowledge of that which it contains or any obligation to determine prior to distribution if that which it contains violates any particular statute.
Why do people latch onto the meaningless distinction between platform and publisher? The short answer is that they're stupid. The first of the two primary provisions in Section 230 of the Communications Decency Act holds that no provider or user of an interactive computer service shall be treated as the publisher of another's content for the purposes of liability. Section 230 came about in no insignificant part due to a pair of internet hosting lawsuits in the '90s. In the first, Cubby v. CompuServe, the determined that because the hosting service had no prior knowledge of the contents of an online newsletter alleged to be defamatory, it couldn't be held liable for it. In the second, Stratton Oakmont v. Prodigy, the court ruled that because Prodigy established guidelines for accepted user content, employed software to filter offensive language and empowered moderators to enforce content guidelines, it had editorial control over that content and was therefore liable for defamatory statements posted to a bulletin board it hosted.
In drafting legislation attempting to rein in offensive and obscene content on the internet, lawmakers recognized the chilling effect civil liability imposed on hosting services would have on speech and how it would stifle growth of the internet, they opted to treat these services not as publishers but as distributors. This distinction is important, unlike that between "platform" and publisher, the former of which doesn't appear anywhere in the statute. In the United States Supreme Court case Smith v. California (1959), decided unanimously, Justice Brennan wrote in the majority opinion that "Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience." As true as this is for brick-and-mortar bookstores, it's even more applicable to the internet.
Moderating and editing content on online platforms doesn't magically transform them into publishers. Stop being stupid.
*I don't actually believe in Hell or any particular afterlife, and so this was included largely in jest.
I don't care that Spotify is an exclusive host for Joe Rogan's content. I don't care that they have committed themselves to be. I'm still a premium subscriber, point of fact. But in defending the decision to continue hosting Rogan, Spotify CEO Daniel Ek trotted out the statutorially illiterate platform/publisher distinction, and for that, I hope he suffers an eternity of brutal torment in the fiery pits of Hell.*
Jason is a ****ing idiot and Section 230 of the Communications Decency Act (because of course this is about Section 230 of the Communications Decency Act) very likely shields Spotify from liability for injury purported to be the result of misinformation it hosts. Of course that's assuming the misinformation Spotify hosts can reasonably be said to itself be injurious, and that's a very high threshold to clear. Misinformation itself is likely to be protected speech. When misinformation isn't protected, it's not because it's misinformation and it's every bit because it's injurious.
Regardless of any exclusivity deal or promotion, Spotify isn't the publisher of Joe Rogan's content because Joe Rogan is the publisher of Joe Rogan's content. Spotify isn't (or at least hasn't thus far been shown to be) involved in the production of Joe Rogan's content and so it doesn't have advance knowledge of that which it contains or any obligation to determine prior to distribution if that which it contains violates any particular statute.
Why do people latch onto the meaningless distinction between platform and publisher? The short answer is that they're stupid. The first of the two primary provisions in Section 230 of the Communications Decency Act holds that no provider or user of an interactive computer service shall be treated as the publisher of another's content for the purposes of liability. Section 230 came about in no insignificant part due to a pair of internet hosting lawsuits in the '90s. In the first, Cubby v. CompuServe, the determined that because the hosting service had no prior knowledge of the contents of an online newsletter alleged to be defamatory, it couldn't be held liable for it. In the second, Stratton Oakmont v. Prodigy, the court ruled that because Prodigy established guidelines for accepted user content, employed software to filter offensive language and empowered moderators to enforce content guidelines, it had editorial control over that content and was therefore liable for defamatory statements posted to a bulletin board it hosted.
In drafting legislation attempting to rein in offensive and obscene content on the internet, lawmakers recognized the chilling effect civil liability imposed on hosting services would have on speech and how it would stifle growth of the internet, they opted to treat these services not as publishers but as distributors. This distinction is important, unlike that between "platform" and publisher, the former of which doesn't appear anywhere in the statute. In the United States Supreme Court case Smith v. California (1959), decided unanimously, Justice Brennan wrote in the majority opinion that "Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience." As true as this is for brick-and-mortar bookstores, it's even more applicable to the internet.
Moderating and editing content on online platforms doesn't magically transform them into publishers. Stop being stupid.
*I don't actually believe in Hell or any particular afterlife, and so this was included largely in jest.
McLaren
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The only thing I'll say is that it's weird to see some looking to argue it's "censorship" over Joe, primarily over his Covid misinformation.
But, Joe was the one who pulled all the episodes. So... did he censor himself, b/c I had read a report that Spotify is basically standing by Joe, still. And all the episodes predate the pandemic, so, that's a weird angle to have as Joe kept all those episodes up.
It comes across as Joe's past coming up, & Joe reflecting that his words back then were not acceptable and as a sign that reinforces his apology, he sat down with Spotify to discuss it and told them he would pull those episodes. Seems like for many, it's hard to accept that Joe had a moral dilemma and just made a decision he thought was best b/c he was sincere in his apology for using such language back then, but would rather continue to push a narrative that somehow Joe was "cancelled" into doing this.
But, Joe was the one who pulled all the episodes. So... did he censor himself, b/c I had read a report that Spotify is basically standing by Joe, still. And all the episodes predate the pandemic, so, that's a weird angle to have as Joe kept all those episodes up.
It comes across as Joe's past coming up, & Joe reflecting that his words back then were not acceptable and as a sign that reinforces his apology, he sat down with Spotify to discuss it and told them he would pull those episodes. Seems like for many, it's hard to accept that Joe had a moral dilemma and just made a decision he thought was best b/c he was sincere in his apology for using such language back then, but would rather continue to push a narrative that somehow Joe was "cancelled" into doing this.
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Danoff
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That's the amazing thing about the whole conversation. People treat it like it's fundamentally different, but so much of this conversation has already been long settled. It's not that different.
That is weird. "Censorship" is usually in reference to the government. If Spotify has rules for what content they carry, that doesn't amount to censorship, it's just what they're willing to carry. Doesn't prevent other content from being produced or distributed elsewhere.
If someone wanted to spray paint the N word on my house and I said "no", that's not censorship, it's just not something I want on my house.
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IANAL, and must admit I'm playing devil's advocate since I agree with the tone of what you say. But... I would think the exact position of Spotify depends on what is written into its contract with Rogan. Any requirement to for him to produce material would make the relationship materially different to the other cases you quote as precedent, and for the rest of this train of thought I'll assume that there is some such requirement. Section 230 provides no protection against liability for first-party content, and I'd be inclined to say that is what Rogan's podcast appears to be (Rogan as producer, Spotify as publisher). I doubt that Spotify choosing not to vet or control when his content goes live is relevant to whether they have a publisher's responsibility for the content.
"Why do people latch onto the meaningless distinction between platform and publisher?"
Legally, it doesn't matter to the people who say these things who has the publisher's responsibility. They are not planning a lawsuit and wondering who it should be against. Whatever the content, responsibility for it rests with one or the other of the known parties. However, there is no actual case being made, and I disagree with the ethics of identifying Spotify as a publisher in order to force their hand (for reputation's sake or whatever). Are they stupid? I don't know. If their goal is to keep people talking about Spotify negatively and whether they have any liability (again, for what exactly?!), I'd say they have succeeded!
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Rogan may or may not have a contractual obligation to continue to produce content as part of the deal made with Spotify.
Mind you the cases referred to weren't presented as comparable or even relevant to the Spotify/Rogan situation, rather they were offered as background for the drafting and passage of legislation.
Spotify, for its part, agreed to a monetary sum and promotion of content. Said promotion may render Spotify subject to liability because distributor exemptions aren't without limit, but the standards for injury in civil litigation still apply.
Spotify still isn't publisher, or at least hasn't been shown to be to any compelling degree, and it isn't the notion that they haven't vetted content that keeps them from being publisher--it's actually closer to the other way around; they're not a publisher and they don't have an obligation to vet content under threat of liability.
Spotify does have an obligation to consumers, however--whether they agreed to it or not--and that's precisely why this has come to a head. Some stupid mother****ers are wont to refer to this as "cancel culture," but it's really the free market.
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All I said was that vetting the content was irrelevant... I believe we are actually in agreement on that...? (I don't think think there's ever a direct legal obligation to vet content, just that one would be wise to do so if one was legally responsible for it in any way).
The publisher or not question (re. S. 230) surely rests on whether Rogan's Spotify content is truly third-party, or whether the contract makes it effectively first-party content whose creation has been contracted out. Without knowing the contents of the contract I don't see how either of us can say for sure (I did make clear I was making an assumption, however reasonable). It doesn't matter how many times you repeat and quote yourself saying that Spotify isn't a publisher if you miss the point I was making.
For clarity I should state that I categorically could not care less in this case whether they are or are not deemed the publisher, as far as any other outcome is concerned. I really am purely interested in the technicality of where S.230. begins and ends, don't have any ulterior motive in having this discussion, and just found it intellectually interesting. Pretty much every other claim I've seen that S.230 doesn't apply has been far far weaker and worthy only of derision.
Oh, absolutely, the free market should decide. The beef I have here is with anyone using a conflated / tangential argument to progress their actual objectives; it's dishonest. Debating whether Spotify is or isn't a publisher is irrelevant to whether they choose to remove him from their platform, as is their perogative in either case, as you'd agree. Anyone pushing us to do so is begging the question "should Rogan be canceled?", in the sense of assuming the answer 'yes'. Well I firmly reject that, but still find the technical point interesting.
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You said you "doubt that Spotify choosing not to vet or control when his content goes live is relevant to whether they have a publisher's responsibility for the content." I disagree. Given the staggering amount of content distributed by Spotify, such vetting puts a significant and inappropriate burden on the platform provider. Because of that burden, Spotify should not (and likely doesn't, barring the unknown) have a publisher's responsibility for the content. Whether they choose to vet it is also explicitly relevant, because if they have advance knowledge of illegal and/or injurious content, they may be liable...but that's presently unknown (certainly by me and, as far as I know, by the general public as well).
"Direct" as in a statute that explicitly requires an entity, however they're categorized, to vet content? I doubt such a statute exists. Liability likely exists in place of such a requirement and represents a de facto obligation.
I understood the point you were making. I responded to it by pointing to my having said that evidence of Spotify being so involved hasn't, to my knowledge, been provided...to reinforce that point.
Yes, there is potential for involvement by Spotify that shifts liability upon them. That's not having exclusive rights, however much was paid, to distribute any amount of Rogan's content. That's also not the act of moderating content (this is the point of Section 230). That might (though certainly isn't by default) be promotion of said exclusive content. Even in the case of the latter, the content must itself be illegal or tortious (mind you "misinformation" still isn't illegal and there are necessarily high standards for it to be tortious).
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While it may or may not make them liable for content (if they vetted and passed something illegal), it still wouldn't make them a publisher, therefore irrelevant to the third-party vs first-party content question.
S.230 doesn't discriminate based on amount of content, and anyway we're talking about a specific case where Spotify is paying for exclusivity unlike the vast majority of the staggering amount of Spotify's content.
Pretty much what I said then.
If you understood the point, then you have misunderstood my interest. I am clearly not setting out to prove that they were a publisher, and have said I don't believe it makes any real difference. You would be mistaken to assume I have any of the same goals as the twitter poster that you initially posted your response to.
Hmm, promotion, maybe - it's a tenuous one though, since even though it is expected of a publisher, it is also much used by distributors, shops, etc, just as a "hey, we have this" (even when it's not exclusive). As I said, I think requirement to deliver content would be the key. Now IANAL, and maybe they could find ways to term a contract with such a requirement to retain S.230 protection, but I think that would be pushing the letter of the law rather than the spirit of it. It's a simple "what if" that I was curious about, no need for me to prove it to have a discussion about it. (But, c'mon, it's an awful lot of money and the contract is extremely likely to demand some content for the cash!). Simply put: IF they pay for exclusivity AND require delivery of content THEN does that make it first-party content?
Absolutely agree here; there's no real case to be answered even if it is deemed to be first-party content, as far as I know.
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To your mind, what is the relevance of "first-party" and "third-party" in this discussion outside the context of liability? It looks like "first-party" is to publisher as "third-party" is to distributor.
Section 230, or rather the first and most frequently invoked provision, is all about liability definitions. It specifically defines providers and users of interactive computer services (web hosts, social networks, online gaming platforms, etc) as not being liable, in the way that publishers tend to be, for the content of others. "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."
I didn't say it does. At no point in the portion of my post that you quoted preceding this response did I explicitly or implicitly reference Section 230. You quoted me as stating what I believe to be a reasonable position, which is that Spotify, in serving as distributor of a staggering amount of content (which is to explicitly disregard any heretofore unsubstantiated notion that they have more direct involvement in the production of any of that content), should not be expected to vet that content. Do you disagree with this position? If so, why?
Exclusive distribution rights. While unique (to whatever degree it actually is), the dynamic is still squarely in the realm of distribution.
Yes, you've repeatedly defined your interest in the matter. Have you noticed that I haven't, at least up to this point, remarked at all on your interest in the matter? I--and I mean this the nicest way possible--really don't care why you're interested in the matter. I'm interested in addressing, to the best of my ability, only what you have to say regarding the matter. I've actually made a conscious effort, at least up to this point, to not quote you as defining your interest in the matter so as to not come across as addressing it. We could both conserve some energy if you stopped defining your interest in the matter. Please and thank you.
Yes. Tenuous. So tenuous, in fact, that I can't conceive of a circumstance in which promotion would explicitly subject a distributor to liability. I just acknowledged the possibility, as the exemption isn't without exception. I tend to not speak in absolutes when I can't speak with absolute certainty, and acknowledging the possibility was my way of acknowledging that I don't have all the answers.
It's certainly been hinted at that promotion may subject a distributor to liability and "algorithms" (BOO!!!) have been highlighted as an exception to the exemption. I've already addressed this up-thread but I'll make clear again that I think this is asinine.
Yes. While an expectation of content surely exists, that's not a reasonable basis for subjecting Spotify to liability. Even if there's a contractual obligation for Rogan to produce content in keeping with what his audience expects of him, that shouldn't be involvement enough to justify exception.
I--what? I don't understand this. I recognize the "I Am Not A Lawyer" bit but everything after that is...ecch. Section 230 protections...exist...and there's no reasonable cause for the contract language to reflect them.
Does it? Why would it? Neither require Spotify to have direct involvement in or advance knowledge of the nature of content and whether it's illegal or tortious.
...
Section 230 was conceived and exists to protect speech. It doesn't so much protect against civil litigation as it does constrain civil litigation which necessarily involves state action on the adjudication and enforcement end. It prevents the use of state action by private actors to chill public speech while empowering (though not compelling) private actors to moderate content, action that is protected by the First Amendment to the United States Constitution.
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That's an awful lot of words spent arguing against, in somewhat derisory tones, someone who essentially agrees with you on all of those tangential points!
I'm just going to stick to the original point I was hoping for civil discussion on.
(Third-party/first-party is pretty much the same distinction as distributor/publisher, except describing the content rather than the entities).
S.230 appears to be very clear on the protection it provides:
It appears to be absolute: Spotify is "an interactive computer service", and Rogan is "another information content provider". I'd certainly agree that is most likely the correct way to describe their relationship, since there is no specific qualification made regarding presence or lack of payment, expectation of production, promotion, ... anything. However, the devil's advocate points to the word "another". Depending on the nature of a contract for content, it may be possible that "another" is no longer valid - as in, what was third-party content has become sub-contracted first-party content. S.230 does not tell us where that line is drawn, or even if it exists. I wouldn't know where to look for an answer on that.
Regarding Rogan's content, I'm definitely not arguing that "Spotify is a publisher". I'm just not certain that "Spotify is not a publisher" is absolutely clear cut in this case, and personally wouldn't be happy to state it as fact.
Danoff
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From a liability perspective, it doesn't matter whether Spotify is a publisher. It's the wrong question.
Here's a rundown of cases that shows what's covered by 230 and what's not covered by 230.
Regardless of whether Spotify is a publisher, the question that seems to be asked is whether Rogan is Spotify. In other words, is he an employee of the company, acting on the company's behalf. The answer to that has got to be no. He's a contractor. I do not know whether that's the case in fact, but I'd be astounded to find out that Rogan is an employee of Spotify.
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Thanks @Danoff, that perfectly covers it and settles any doubts I had about it. I didn't intuitively expect it to be such a clear answer, so I'm glad to learn that "employee or not" has been used to decide the matter previously (and I'd agree that nothing suggests Rogan is an employee at all). It seems to be a very high threshold for something becoming first-party content, and somewhat arbitrary given today's wide variety of working relationships, but it is what it is!
(first-party content effectively just being my way of thinking about who has the liability; I wan't comfortable with 'publisher' being the right question/answer).
(first-party content effectively just being my way of thinking about who has the liability; I wan't comfortable with 'publisher' being the right question/answer).
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Danoff
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Great, let me muddy it up a bit for you.
So the phrase "by another" appears in other places in law, especially with regard to intellectual property, and the phrase can get muddy. For the purposes of "by another" there are collaborative entities that can be considered a single individual. So, think, for example, BMW working with Toyota to create the Supra. Neither BMW nor Toyota is an employee of the other, but they entered into a contractual relationship to... um... to make this fit I'll use an awkward word here... co-author the Supra. If Spotify were a co-author, they would not be considered "by another", at least based on my understanding of how that phrase gets used elsewhere. So for the purposes of this, it might be instructive to think about who would own the copyright to Joe Rogan's work. Is it Spotify? Is it Joe Rogan? Or do Spotify and Joe Rogan co-own the copyright (not to be confused with a license to the copyright)?
If you're a Disney employee and you write a story, Disney owns the copyright. If you're a contractor with Spotify, generally speaking you would own the copyright. And if Disney partners up with Dreamworks to make a movie, they might co-own the copyright. Likewise there are plenty of books written with individual co-authors co-owning the copyright.
So it's a little more grey than it might have appeared.
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Bill introduced in the West Virginia Legislature requiring an oath to uphold the Constitution as a condition for graduation of high school violates the Constitution. WV Republicans are likely aware of this--seeing as the state was represented before the United States Supreme Court in West Virginia Board of Education v. Barnette (1943), a decision that prohibited compulsory participation in the Pledge of Allegiance--and they simply don't care.
Compelled speech isn't free speech. Why do Republicans hate free speech?
Compelled speech isn't free speech. Why do Republicans hate free speech?
UKMikey
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Sorry I missed this. I'll wager Republicans don't like actual free speech because it may distract their followers from the concept of GOP-brand "free speech"... the freedom for private parties to talk BS about other private parties without fear of condemnation or censure, within certain constraints (those constraints being: so long as the BSers are conservative).
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Good chance that a bad law will be rendered null and void. Here's some background on the case:
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McLaren
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To absolutely no one's surprise, Trump's social media platform is has technical issues & ironic censorship.
www.engadget.com
Trump’s free speech app Truth Social is censoring content and kicking off users
Nearly 500,000 people are on the app’s “waitlist”.
www.engadget.com
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I mean, when you put the guy who tried to sue a fake cow in charge, we should expect no less.To absolutely no one's surprise, Trump's social media platform is has technical issues & ironic censorship.
Trump’s free speech app Truth Social is censoring content and kicking off users
Nearly 500,000 people are on the app’s “waitlist”.
Devin Nunes cannot sue Twitter over fake cow parody account, judge rules
GOP Rep. Devin Nunes resigns from Congress to become CEO of Trump’s media company
UKMikey
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How can you have a global conversation in just one country? Aren't there plenty of Trumpies in places like Australia and Canada just chomping at the bit to stick it to those liberal Big Tech nogoodniks?
The first thing Nunes did was ban Matt Ortega's DevinNunesCow account. Lol freedom.
The first thing Nunes did was ban Matt Ortega's DevinNunesCow account. Lol freedom.
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Danoff
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I'm compelled to note that Truth Social or any other social network removing content or banning users isn't actually a free speech concern (unless that social network is offered and operated by state actor), but it is a free speech matter because the private actors that offer and operate these social networks also have the right to free speech and they should not be compelled to carry speech of which they don't approve, whether that disapproval is a legal or ethical concern or they simply don't share a particular viewpoint.
But...this definitely gives up the game for these rat ****ers. They've been crying about supposed abuses and they're engaging in exactly the same behavior.
But...this definitely gives up the game for these rat ****ers. They've been crying about supposed abuses and they're engaging in exactly the same behavior.
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