[HN Gopher] Up next: a lawsuit threatening your YouTube watch queue
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Up next: a lawsuit threatening your YouTube watch queue
Author : davekiss
Score : 61 points
Date : 2023-05-01 15:36 UTC (7 hours ago)
(HTM) web link (www.mux.com)
(TXT) w3m dump (www.mux.com)
| johnea wrote:
| [flagged]
| nindalf wrote:
| Is it just me or are a lot of software related questions going to
| these 9 people who "are not like the nine greatest experts on the
| internet", according to Justice Kagan?
|
| Although to be fair, they did really well on Oracle v Google (htt
| ps://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,_....).
| The questions the Justices asked were very good and the final
| judgement was definitely written by a clerk who understood
| software well.
|
| It's possible they might mess this up. I'm having a hard time
| imagining a site that doesn't make a decision on what content to
| show. Even HN makes an editorial decision when choosing what to
| show on the front page. It would be absurd to hold dang
| accountable for that.
| flyingv wrote:
| Some of their past internet-related cases have been worrisome,
| but if you listen to the oral arguments on this one they do ask
| some good questions... albeit that's probably partially due to
| their recent-law-school-grad clerks helping with prep.
| reylas wrote:
| Keep in mind, when you get to the "oral argument" phase, the
| Justices have already had months to read the documentation
| and the briefs submitted in order to articulate and
| understand those issues.
|
| The attorneys for both sides state their case well ahead of
| time before the oral arguments.
| SllX wrote:
| > Is it just me or are a lot of software related questions
| going to these 9 people who "are not like the nine greatest
| experts on the internet", according to Justice Kagan?
|
| We have an adversarial court system and they don't need to know
| software to know the law. It is the jobs of the attorneys to
| properly educate the Justices in their briefs, filings and oral
| arguments on the facts of the case and how they think the law
| should be read in their favor; and the Court watches what goes
| on in the Appellate and District courts to gauge what issues
| they will be dealing with. Lastly while the Justices themselves
| might have left school decades ago, they regularly rotate
| through clerks bringing fresh opinions and perspectives into
| the Courthouse.
|
| What's important is what the law says and the way it should be
| read, and that's going to be inconvenient for someone but
| typically any perceived defects in the law lay squarely at
| Congress's feet.
| bombcar wrote:
| Exactly, if there's some court-room drama type "gotcha" that
| a knowledgable Justice could _ask_ then _it is the job of one
| side or the other to make that argument_.
| LeifCarrotson wrote:
| > _What's important is what the law says and the way it
| should be read, and that's going to be inconvenient for
| someone but typically any perceived defects in the law lay
| squarely at Congress's feet._
|
| Congress writes laws with the assumption that ambiguities and
| complications will be intelligently and justly resolved by a
| human being - namely, these 9 people. The issue is not that
| one side or the other may fail to educate the Court, it's
| that the problems of "what the law says" and "what justice
| is" and "how the internet should work" may not be entirely
| coherent, especially when societal norms are changing as fast
| as they are today.
|
| When the Constitution was written, the word "publisher" had a
| completely different meaning, completely unaware of the
| possibility of YouTube. Even in 1996, algorithmic Internet
| moderation had a different meaning to what providers are
| doing today. How will - _how should_ - people in 5 or 10
| years moderate websites and consume content? I 'm not the
| greatest expert on the Internet, I started using it at
| approximately the same time that section 230 was passed, but
| I'm very familiar with it and that would be a really hard
| question for me to answer. A senior citizen who formed and
| solidified most of their ideas about the way society works or
| should work three to five decades ago would have a really
| hard time wrapping their mind around the concept even with
| excellent guidance from the best attorneys.
|
| We need judgements that put our society in the best position
| for the next decade, and these 9 people may not be
| sufficiently able to be coached to think ahead far enough to
| do that.
| nradov wrote:
| The Constitution doesn't even contain the word "publisher".
|
| Issues that come before the Supreme Court are by nature
| largely toss-ups with no clear right or wrong answer.
| Instead of taking a risk with those 9 people, lobby your
| members of Congress to write laws that are so clear and
| specific that no judicial interpretation is needed.
| flyingv wrote:
| +1 -- SCOTUS even seems to agree that they wish Congress
| would just modernize 230 so they wouldn't be trying to
| interpret what the word "publisher" (conceived before the
| internet existed) means in a digital era. All SCOTUS can
| do is look at the law as currently written and try to
| apply it to current situations in a reasonable way. By
| contrast, Congress can wholly rewrite the law and
| introduce new terms/concepts into it.
| SllX wrote:
| > We need judgements that put our society in the best
| position for the next decade, and these 9 people may not be
| sufficiently able to be coached to think ahead far enough
| to do that.
|
| That is a kind of judgement, but that kind of judgment is a
| _policy_ judgment, not a legal one.
|
| If you want a policy judgment, you go to Congress; they
| make a determination, decide if they're going to pass a
| law, and if they do so then you have a law that reflects
| what their policy is in the text of the statute. If you
| want a legal one, you go to the Courts. If there's
| ambiguity in the law, then you're going to have different
| interpretations, and the attorneys at trial, and often the
| Solicitor-General of the United States are going to present
| their best arguments as to how the law should be
| interpreted.
|
| In other words, a trial and its eventual outcome is a
| collaboration between adversaries, the Justices, their
| staff, and the US government when they choose to chime in
| (they usually can if they want even if they're not one of
| try party's at trial). You're giving the Justices too
| little credit and more responsibility than they lawfully
| possess; it is already sufficient that they have the
| responsibility of interpreting the laws, facts and
| arguments before them.
| SllX wrote:
| I'm used to lower quality SCOTUS analysis getting posted here,
| but the first thing I wanted to note is that this site's page
| design and playback widgets is actually pretty good. It's also
| apparently not a news organization because I was ready to blindly
| throw the RSS feed into NetNewsWire and see what I thought of it
| by next week.
|
| Second, it pretty much nails it in this paragraph:
|
| > A few outcomes are possible. First, the court could uphold the
| lower court decisions that 230 immunizes Google from liability in
| this case. Second, the justices could find in favor of the
| Gonzalez family, taking 230 immunity off the table and causing
| the lawsuit to move on to its next question: whether YouTube's
| conduct violates specific antiterrorism laws. Last, the court
| could ultimately decline to rule on the question, citing clerical
| issues or the low likelihood Gonzalez would succeed on the
| antiterrorism element.
|
| Those are the possibilities. I had to go back and look at my
| notes from a few months ago because there was a similar and
| related case against Twitter that had oral arguments scheduled
| the same day, and where I ended up coming down based off a
| reading of the room is that most likely Section 230 is upheld
| entirely in the Google case by 9-0 or 8-1 and it's not even
| close; but it might still be very slightly curtailed by the
| outcome of the Twitter case which wasn't a Section 230
| (Communications Decency Act) case per se but a Section 2333 case
| under the Anti-Terrorism Act.
|
| Here is the Oral Argument and transcript of Gonzalez v. Google
| LLC:
| https://www.supremecourt.gov/oral_arguments/audio/2022/21-13...
|
| And this is Twitter, Inc. v. Taamneh:
| https://www.supremecourt.gov/oral_arguments/audio/2022/21-14...
|
| Both are worth listening to, and if you're going to listen to
| both, listen to Gonzalez v Google first as it was argued first.
| Oral arguments are not always or not even usually the determining
| factor for how a case comes out, but reading the room, I just
| don't see the votes for curtailing interpretations of 230 in any
| significant way on the Court.
| zer0x4d wrote:
| It's not far fetched to argue that content recommendation
| algorithms are protected under 230, but I do recall Twitter
| sidebar during the 2020 elections featured original commentary
| under the trending tags, which definitely is speech by Twitter.
| Stuff like "x wrongly claimed y" or "people are protesting z due
| to..."
| kevingadd wrote:
| I wonder if there are any legal protections for what the
| Twitter trending list used to do - paid people to summarize the
| topic that was trending - vs the company itself stating its
| opinion on a given subject. The google search answerbox, for
| example, will show you an "answer" for a given query, but it's
| not _Google_ 's answer to the query, it's whatever the source
| they selected says.
| steve_gh wrote:
| Then again, if I ask for a ranking by average user rating, or
| alphabetically, then I (the viewer) are setting the criteria.
|
| If YouTube's algorithm is deciding what to show me, then I (as
| the user) am asking for YouTube's opinion.
|
| So I think that there is a coherent argument that YouTube 's
| recommendation algorithm is expressing an opinion, and is
| therefore YouTube 's content.
|
| Would it have 1st amendment protection though?
| flyingv wrote:
| _> If YouTube's algorithm is deciding what to show me, then I
| (as the user) am asking for YouTube's opinion. So I think
| that there is a coherent argument that YouTube's
| recommendation algorithm is expressing an opinion, and is
| therefore YouTube's content._
|
| To me it seems like a platform could easily skirt this by
| having users opt in to recommendations (and maybe even choose
| a sorting criteria option) at signup.
|
| _> Would it have 1st amendment protection though?_
|
| The 1st amendment only protects against government
| censorship, not private lawsuits for existing causes of
| action (e.g., defamation). It would be individuals (like the
| Gonzalez family) suing YT in a world where the
| recommendations were deemed to be YT's own content.
| yamtaddle wrote:
| > > If YouTube's algorithm is deciding what to show me,
| then I (as the user) am asking for YouTube's opinion. So I
| think that there is a coherent argument that YouTube's
| recommendation algorithm is expressing an opinion, and is
| therefore YouTube's content.
|
| > To me it seems like a platform could easily skirt this by
| having users opt in to recommendations (and maybe even
| choose a sorting criteria option) at signup.
|
| How does opting in make any difference, for this particular
| point?
| flyingv wrote:
| If a distinction was drawn (by SCOTUS or Congress)
| between search results (where you ask the platform to
| produce a ranked list based on search criteria) and
| recommendations (where you theoretically didn't
| "instruct" the platform to show them), I could see
| platforms adding a little modal to the signup flow being
| like "please instruct us to show you recommendations" and
| maybe surfacing a few settings for that, so they could
| later argue the recommendations were only served at your
| request (and thus should get search-result-style
| protection).
| steve_gh wrote:
| Thxs for the explanation - I'm not USAian, so I don't
| understand the scope of the 1st amendment
| advisedwang wrote:
| Recommendation systems are a large part of what is wrong with the
| internet and the issues that we blame on moderation.
| jedberg wrote:
| I think the crux of the issue here is that the recommendation
| algorithm isn't built to say "find ISIS material and promote it".
| It says "find content that will generate more engagement for this
| user". Reddit is in a similar situation -- it promotes what other
| people upvote. Some submissions will be _removed_ due to their
| specific content, but nothing is promoted because of it.
|
| This is where Twitter could get into hot water -- if the code
| that was released is accurate, they were specifically promoting
| tweets by certain people and with certain content. They can't
| claim "it's just the algorithm" because their algorithm is
| intentionally biased based on the content itself.
| suddenclarity wrote:
| Are you talking about the Musk tag used to measure visibility?
| I don't recall them hard coding promotion of specific accounts?
| Seems like it should be a major talking point.
| Mechanical9 wrote:
| Lots of changes will be made every day at Twitter that will
| have to keep the Musk metric healthy. Even if the changes
| aren't explicitly designed to promote Musk's own tweets,
| having the metric visible to all employees will at minimum
| eliminate any change that would demote Musk's tweets. Over
| time, the Twitter algorithm will become biased towards
| promoting Musk-like content.
| iudqnolq wrote:
| We only have musk's word that tag was used to measure
| visibility. Wouldn't a random sample with users of different
| sizes and types make more sense for that?
|
| Even if it was, that could have the same effect. If they test
| every change and only keep the ones that don't harm Musk's
| visibility that is in effect making the algorithm consider
| Musk specially.
| SilasX wrote:
| >I think the crux of the issue here is that the recommendation
| algorithm isn't built to say "find ISIS material and promote
| it". It says "find content that will generate more engagement
| for this user".
|
| Which would be a good point to argue, and a good distinction
| for the law to make, but Google's defense is that even a
| deliberately pro-ISIS algorithm would be exempt under 230. From
| the article:
|
| >>They argue that in an internet brimming with content, there
| is literally no way to present things that doesn't involve some
| deliberate prioritizing of what to show. Taking their argument
| to its logical extreme, Google's lawyers even claimed that
| Section 230 would protect a platform against suit over a
| deliberately pro-ISIS algorithm.
| numeromancer wrote:
| I don't think that they made this argument because they want
| to promote ISIS. I think they made it because they want to
| promote content for CNN, MSNBC, Pfizer, Fox News and whoever
| else gives them money to do so.
| jefftk wrote:
| When making legal arguments you'll often do things like:
| "this recommendation algorithm is legal because any algorithm
| would be legal, but even if you don't accept this then this
| algorithm is legal because it didn't consider the content of
| the video in making a recommendation, but even if you don't
| accept this then..."
|
| That they asserted that any algorithm would be legal doesn't
| tell us that their case stands or falls on that assertion
| alone.
| jedberg wrote:
| Sure, they want to argue the most extreme interpretation of
| 230 to get the court to either side with them completely or
| "compromise" by getting to what I wrote.
|
| At the same time they are lobbying congress to keep 230 the
| way it is but do what I wrote as a compromise if they have
| to.
|
| They just don't want to lose Section 230 protection because
| it would mean the end of user generated content. Without 230
| protections, every user submission would have to be reviewed
| before going live, even here.
| JohnFen wrote:
| > Without 230 protections, every user submission would have
| to be reviewed before going live, even here.
|
| Yep. And if that goes, then the last major good thing about
| the web will be destroyed. Or second-to-last, since some
| real people still actually do still put up their own
| noncommercial websites.
| flyingv wrote:
| The Twitter example is a really good one. Google obviously
| choose to take things to the extreme by arguing that even
| deliberately pro-ISIS algos should get protection, but one more
| moderate outcome could be something like "YT is only liable if
| they specifically designed their algo to recommend the
| problematic content".
| ouid wrote:
| This title (and the article itself) is deeply biased. Obviously
| "platform" recommendations are materially different from third
| party content.
| flyingv wrote:
| Author here. Sounds like you and I agree that algo-generated
| recommendations of content are different from actual content
| itself. But the point of the article (and title) is that the
| plaintiffs in this case argue that each time YT generates
| recommendations, they're making new content that YT can be
| liable for.
|
| I'm mostly just recapping what was said by each side at oral
| argument and the potential dramatic consequences if SCOTUS
| finds fully for Gonzalez -- not sure I follow where you're
| seeing bias.
| ouid wrote:
| I said that recommendations themselves are materially
| differwnt from hosted content and _therefore_ are not
| protected by section 230.
| SoftTalker wrote:
| Yes, it would be nice to be able to watch a WWII history
| documentary on YouTube and not have the recommendations
| instantly fill with Hitler/Nazi videos.
| flyingv wrote:
| How would you respond to Google's argument that all content
| has to be ordered in _some_ manner to be displayed?
| a1369209993 wrote:
| If they don't support ordering ascending and descending
| by date, number of views, and title alphabetically,
| that's their fault.
| Dylan16807 wrote:
| But do those need to be basically the _only_ sorts?
| owisd wrote:
| Draw the line on number of parameters needed to produce
| the ordering. An A-Z or chronological ordering is based
| off 1 parameter whereas a recommendation algorithm uses
| dozens. A HN-style algorithm needs maybe 2-3 parameters.
| The regulator can make a value judgement that up to a
| certain number of parameters is just hosting a directory
| of third party content, whereas above that you're
| promoting it and have to accept some liability for the
| content.
| [deleted]
| flyingv wrote:
| A quantity-driven test would mean that an algorithm that
| says "sort by number of mentions of ISIS" is safe, but an
| algorithm that says "sort by a score comprised of
| newness, number of upvotes, number of comments, and
| geographical proximity" would fail... It would also doom
| search engines, whose results pages are generated by
| multi-variate algorithms.
| owisd wrote:
| In principle I'm fine with all of that. I suspect there's
| not much mainstream appeal for a YouTube that only
| recommends ISIS videos, so you're not pushing ISIS videos
| to someone who wasn't already looking for them. I suspect
| such a site would fall foul of law enforcement on other
| grounds (such a rule change wouldn't be allowing anything
| that wasn't allowed before). I don't see why the
| regulator would need to decide on the same limit for
| pull-based search results (I've told the site what I'm
| looking for) rather than push-based recommendations (the
| site is pushing something else alongside what I was
| looking for).
| flyingv wrote:
| I think your distinction on push vs pull is a good one
| that Congress could consider incorporating if it chooses
| to revisit 230, though that approach is probably too far
| from the current text for SCOTUS to be willing to read it
| in when it rules on Gonzalez.
|
| However, something worth noting: wherever 230 lands,
| there's not some regulator using discretion in enforcing
| it (like a prosecutor deciding when to charge someone
| with murder) -- this is a law that gives tech platforms a
| defense from the private lawsuits that could otherwise
| put them out of business (e.g., suits by
| indviduals/businesses for defamation because the algo
| ended up recommending a "John Smith is a lying fraud"
| video).
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