IBM's Ridiculous Opportunism: Sells Out Section 230 To Sell More Filters

This perhaps isn't a huge surprise, but IBM is being disdainful of the wider tech ecosystem, yet again. It has an incredibly long history of this kind of activity -- mostly in the patent space, where it is the world's foremost patent bully. The company gleefully announces each and every year that it gets the most patents of any company in the US. It has done this (no joke) for 26 straight years. Of course, given how many patents it gets, if patents actually were a marker for innovation, you'd think that IBM would still be putting out all sorts of innovative new products all the time. Right? Except, of course, it is not. Instead, it uses the patents to shake down companies who actually do innovate. The most famous of these stories is the one about IBM and Sun in its early days, in which IBM showed up at Sun's offices with threats of patent infringement:

My own introduction to the realities of the patent system came in the 1980s, when my client, Sun Microsystems--then a small company--was accused by IBM of patent infringement. Threatening a massive lawsuit, IBM demanded a meeting to present its claims. Fourteen IBM lawyers and their assistants, all clad in the requisite dark blue suits, crowded into the largest conference room Sun had.

The chief blue suit orchestrated the presentation of the seven patents IBM claimed were infringed, the most prominent of which was IBM's notorious "fat lines" patent: To turn a thin line on a computer screen into a broad line, you go up and down an equal distance from the ends of the thin line and then connect the four points. You probably learned this technique for turning a line into a rectangle in seventh-grade geometry, and, doubtless, you believe it was devised by Euclid or some such 3,000-year-old thinker. Not according to the examiners of the USPTO, who awarded IBM a patent on the process.

After IBM's presentation, our turn came. As the Big Blue crew looked on (without a flicker of emotion), my colleagues--all of whom had both engineering and law degrees--took to the whiteboard with markers, methodically illustrating, dissecting, and demolishing IBM's claims. We used phrases like: "You must be kidding," and "You ought to be ashamed." But the IBM team showed no emotion, save outright indifference. Confidently, we proclaimed our conclusion: Only one of the seven IBM patents would be deemed valid by a court, and no rational court would find that Sun's technology infringed even that one.

An awkward silence ensued. The blue suits did not even confer among themselves. They just sat there, stonelike. Finally, the chief suit responded. "OK," he said, "maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?"

After a modest bit of negotiation, Sun cut IBM a check, and the blue suits went to the next company on their hit list.

This kind of negotiation is a standard part of IBM's business practices these days. Just recently it was shaking down Groupon. And a few years ago, we wrote about the similar shakedown of Twitter, with the threat coming on the eve of Twitter's IPO -- timed perfectly to scare off investors. Left with little choice, Twitter caved, even though the patents were bogus, and paid IBM $36 million.

Back in 2013, when IBM first went after Twitter, I highlighted how it was an example of how older tech companies focus on litigation when they have no innovation left. In the comments, a few people challenged that claim, saying that IBM was innovative. "Just look at Watson," the company's big AI project, they all said. So, about that:

• How IBM Watson Overpromised and Underdelivered on AI Health Care
• What went wrong at IBM? Its 'master plan' has failed to deliver...
• IBM pitched its Watson supercomputer as a revolution in cancer care. It’s nowhere close
• MD Anderson Cancer Center’s IBM Watson project fails, and so did the journalism related to it
• IBM’s Watson ‘is a joke,’ says Social Capital CEO Palihapitiya
• IBM’s Watson Not Living Up to Hype
• Doctors Are Losing Faith in IBM Watson’s AI Doctor
• Report: IBM Watson delivered ‘unsafe and inaccurate’ cancer recommendations

I could go on and on, but I think you get the picture. And of course, in a post-Alice world, where the Supreme Court has made it clear that most software doesn't deserve a patent, IBM is losing its ability to prop up its businesses with the patent shakedown game as well. Indeed, EFF even shamed the company into dropping one of its truly stupid patents.

So what's a giant tech company that hasn't been innovative in years, and can't rely on shaking down actually innovative companies with bogus patents, to do? Well, how about using some other methods of gaming the regulatory system? Last year, IBM made it quite clear that it wanted to fuck up the internet, when it came out in favor of FOSTA (and at the same time, against inserting intermediary liability protections, like Section 230 of the CDA, into trade agreements).

Now, incredibly, just at the time when there are bipartisan attacks on Section 230, IBM has decided to support gutting Section 230 with a truly malicious and ill-informed statement arguing that 230 protections should be "earned" based on an impossible "reasonable" standard.

In the United States, precision regulation means taking a fresh look at Section 230 of the Communications Decency Act (CDA 230). As currently written, CDA 230 grants an expansive liability shield to any provider of an “interactive computer service” for the actions that occur on their platform, regardless of whether the platform turns a blind eye to illegal activity. Courts have found companies that knowingly host illegal content to be exempt from legal liability based on the broad protection that CDA 230 provides. But a measure designed nearly a quarter-century ago to foster an infant internet needs to keep pace with the enormous social, economic, and even political power that the online world today commands.

Instead of holding all online platforms exempt from liability by default, IBM believes that the exemption should be conditioned on companies applying a standard of “reasonable care” and taking actions and preventative measures to curb unlawful uses of their service.

We just recently discussed how this is a completely unworkable standard. First of all, a reasonable care standard would mean widespread censorship, because what internet company wants to risk going to court over all of this? If "conservatives" think they're getting banned too frequently from social media today, just wait until those platforms face real liability for leaving content up too much.

Second, "reasonable care" will have to be proven in court -- meaning that the procedural benefits of Section 230 get tossed out the window (rather than being able to get a case tossed at an early stage on 230 grounds, companies will have to go through the expensive and time-consuming process of "proving" to a court that they've taken "reasonable care").

Of course, IBM doesn't give a shit about the open internet. To them, killing Section 230 opens up all sorts of neat possibilities. First off, IBM doesn't host any significant online services that rely on Section 230 protections, so it doesn't increase its own liability. Second, it handicaps the companies who actually have been innovating in AI technology, like Google and Microsoft. Third -- and this is the key -- you can bet that one way that many companies will try to prove "reasonable care" would be to purchase an expensive filtering technology. Perhaps one based on... Watson? IBM gets to salvage its junk technology and have the government create a market for it. Bonus.

The rest of IBM's post is incredibly disingenuous:

The “reasonable care” standard would provide strong incentives for companies to limit illegal and illicit behavior online, while also being flexible enough to promote continued online innovation and fairly easy adaptation to different online business models.

The companies already have plenty of incentives to "limit illegal and illicit behavior online" -- because when they don't, they get a ton of shit for it in the press and from politicians. Establishing a new bullshit level of liability will only lead to much greater censorship, including of perfectly legal content. This is something IBM doesn't even acknowledge.

In fact, IBM tries to rewrite what happened with FOSTA:

Around the same time, IBM played a key role in promoting passage of U.S. legislation to crackdown on the spread of online content with a truly horrific purpose: trafficking children for sexual exploitation. We saw this legislation, known as SESTA/FOSTA, as an important step in a broader global effort to stop criminals from using digital platforms for clearly illegal behavior.

And what has happened since then? FOSTA has failed in every measure. More women and children have been put at risk thanks to FOSTA. For IBM to be taking a victory lap on that is truly fucked up.

Then IBM pushes out this complete nonsense:

Reasonable care does not mean eliminating entirely the intermediary liability protections of CDA 230, or comparable laws in Europe and elsewhere. Nor are we calling for amending the “Good Samaritan” provision of CDA 230, which limits the liability of companies that take voluntary actions to stop bad actors. We simply believe companies should also be held legally responsible to use reasonable, common-sense care when it comes to moderating online content. This means, for example, quickly identifying and deleting content focused on child pornography, violence on child-oriented sites, or online content promoting acts of mass violence, suicide, or the sale of illegal drugs. A reasonable care standard in CDA 230 would add a measure of legal responsibility to what many platforms are already doing voluntarily.

Note the many, many contradictions in just this paragraph alone. The "Good Samaritan" provision of Section 230 is what encourages companies to take down that content already. Adding legal liability absolutely does remove the very mechanism that the Good Samaritan provision provides. Second, if (as the paragraph notes) the internet platforms are already doing this voluntarily, why do we need to add legal liability to hold them responsible? And that's not even mentioning the fact that the post conflates a bunch of different content -- ignoring how difficult some of it is to recognize (compared to others that are easy to recognize). There is not a single serious internet company that is allowing child pornography on its platform. They all ban it. They all remove it as soon as they're aware of it. They all tap into the giant NCMEC database of hashes. And they do that because they don't face liability.

IBM has long been a black hole for actual innovation. Now it wants to suck down the open internet with it. Don't let it.

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