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Saturday, August 08, 2020

"The poop is everywhere!"

Lawyer and YouTuber Viva Frei acquired a complete copy of the original backer arbitration claims - courtesy of the Norton Law Firm - and analyzes them as well as the judge's final ruling on the preliminary injunction:


And there you have it, a thorough update and breakdown of the Patreon lawsuit and a further illustration of the fact that when you've stepped in poop, sometimes the best thing to do is stop walking around and tracking it everywhere. Patreon definitely stepped in poop, and by the way of their highly-questionable amendment after the fact to try to undo their own mistake, I think they have just tracked poo-poo all over their house, in their bedroom, in their bed, on their pillowcase... the poop is everywhere!

He was clearly impressed by the case constructed by the LLoE, as he described it as "very intelligent" and even "genius". And this didn't even begin to get into the poop-tracking accomplished by the filing of the lawsuit and its inevitable consequences in the form of the amended claims by the 72 Bears being sued.

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33 Comments:

Anonymous Anonymous August 08, 2020 6:34 AM  

It is interesting that people with and without a horse in the race are seeing what's happening with this. From Sargon, to Cernovich to Rekieta, to TheQuartering and this guy, they are on the Big Bear's side. If Patreon employees had literally come and sacrificed Owen's goats to Moloch, they would conclude that he deserved it. The gammas don't have anything higher than their personal hatred motivating them.

Blogger Gregory the Tall August 08, 2020 7:31 AM  

Castalia should hire this guy to read audiobooks, it would save an awful lot of download bandwidth.

Blogger Gregory the Tall August 08, 2020 7:37 AM  

Patreon and similar providers have a big problem:
- either they stay out of the contractual relationship between creators and their supporters and cannot be held responsible for anything that is said or done, like projects that never take off,
- or they say, yes, we are somehow part of the contractual relationship, then they may have to constantly supervise not only "hate speech", but also instances of plain consumer fraud like promising somebody a sleeping bag that will keep you warm at minus 95 degrees and never delivering. They might also be held financially responsible for such fraud.

Blogger Pathfinderlight August 08, 2020 7:38 AM  

Viva Frei has taken issue with constitutional arguments against big tech censorship before. He clearly enjoys Patreon being hit with tortious interference as an example of how to hit the giants where it hurts...their own terms of service.

Blogger rumpole5 August 08, 2020 8:41 AM  

The splendid English Common Law, contract/torts component, is doing its splendid thing. Unlike so many so many of my fellow Black US citizens, I'm very grateful that my Kraut non English ancestors, thru fortune, faith, and/or folly, migrated to the Anglosphere.

Blogger stevo August 08, 2020 8:52 AM  

I've seen a lot of stories about this online, often they don't mention Owen by name...

Blogger Unknown August 08, 2020 9:10 AM  

I'm realizing that following this whole saga is becoming akin to following a well loved sports team battling through adversity towards the championship. I even find myself oddly cheering while listening to different analyses with chants such as "L-L-O-E", "OFFENSE", and "F*** 'EM UP VOX"

Blogger wreckage August 08, 2020 9:33 AM  

I especially like the fact that the hasty and unforced error of (illegally?) amending the TOS can be seen as a tacit admission that there was indeed a contract there to be tortiously interfered with. I don't even know law and that whole document read wonderfully. Thorough, logical, clear, and with a subtlety of structure.

Blogger FP August 08, 2020 9:47 AM  

@4

Yeah, I've noticed that on several of his videos. The constitutional arguments keep failing so one might as well go after them for bad business practices.

Blogger Brad August 08, 2020 9:51 AM  

This guy may be able to speak as fast as Vox can read!

Enjoyed it.

Blogger szook August 08, 2020 10:06 AM  

EEEEWWWW! Oh, well, couldn't have happened to a nicer bunch....no really, if they had just been a bit nicer this would not have happened at all...would it now.

Blogger Section 8A August 08, 2020 10:44 AM  

The Patreon strategy matches what Cal Washington says: Frei talks about NOT using constitutional arguments, but going against “unfair business practices” aka COMMERCE. The pattern emerges.

Blogger Tatooine Sharpshooters' Club August 08, 2020 10:46 AM  

I've noticed a none-too-subtle shift in the Narrative about this case. Instead of "they're a bunch of stupidheads who are going to stupidly lose their stupid case cuz they're stupid", the new Woke wisdom about it is "this is so selfish and unfair, they're damaging not just Patreon, but also all the innocent people using it, even other 'conservatives'!".

Blogger Mauldication Bear August 08, 2020 11:28 AM  

I liked the part about Patreon's typo.

Blogger Solon August 08, 2020 11:35 AM  

It's hard to follow this guy if you arent familiar with him or legalese since he speaks so quickly.

That said, he does bring an excellent summary of just how stupid Patreon has been throughout this campaign. I had a huge smile on my face the whole time as I was thinking "how can Patreon's lawyers have EVER thought this was a good idea? It's just outrageous."

Stepped in poop and then tracked it all over the house indeed.

The next questions that need answered: can this be applied to other companies engaging in censorship? Can one arbitrate against YouTube for censoring based on statements on another platform? Can one do so even if one doesnt have another platform to "speak hate speech" on? Can one sue for tortious interference against the SPLC or ADL? I suspect YouTube will be smart enough to not give a reason for censoring, but that doesnt prevent creators from bringing arbitration anyway and forcing a reason, and then youtube has to be careful in wording their response or get stuck in the Patreon quagmire.

If nothing else, we should see a MASSIVE crackdown on TOS for most major platforms. Ordinarily, this should have a backlash as content creators shy away from such draconian terms of service, but in reality, I suspect most creators will think themselves immune to them, saying "but *I* dont say hate speech! *I'm* not a BadThinker!" Then, when they get censored anyway, theyll be dumbstruck: "How could this have happened!"

Vox was right again: we need to build and promote our own platforms, yesterday ideally, but today is an acceptable second choice.

Blogger VD August 08, 2020 11:37 AM  

I've noticed a none-too-subtle shift in the Narrative about this case.

Exactly. Now they're not stupid, they're selfish and bad. As if people can't remember what they were saying just 2-3 weeks ago.

Blogger Crew August 08, 2020 12:01 PM  

2020 has proven to be the most awesome year yet, and the best is yet to come on November 3!

Blogger Crew August 08, 2020 12:04 PM  

I don't always watch videos but when I do I watch videos about stupid companies suing Owen Benjamin and losing!

Blogger Krymneth August 08, 2020 12:08 PM  

Solon wrote:The next questions that need answered: can this be applied to other companies engaging in censorship? Can one arbitrate against YouTube for censoring based on statements on another platform?

The current claim Owen has is helped by the fact that Patreon never claimed to have the power to censor based on other platforms. The obvious solution to that is for the other platforms to claim it. It would take a new line of attack to see whether or not that's "unfair" enough to get removed. (It seems to me that it's not unreasonable for that to be unfair in a contract of adhesion.)

The case the Bears have is greatly enhanced by the tortious interference claim. This is only going to apply in cases where the platforms are aggregating money, but as Gregory the Tall points out in comment #3, those are all but forced to insist they are not a party to the individual contracts created by the people sending money to creators for good reasons that aren't going to go away, opening the interference claim.

(It would be interesting to analyze the situation where a content creator on Patreon or something creates the equivalent of a click-through contract formalizing the implicit contract between the content creator and the people sending money. Arguably the benefit tiers are most of the way to a formal contract anyhow, though. At least the ones that promise something.)

This interference claim will only result in cases where there is that implicit contract and the platforms are collecting money. Personally, as a for-instance, I'm not sure a YouTube superchat would constitute a "contract"; it looks a lot more like a "donation" to me. But that would be for a judge/arbitrator to decide. (Or, as in the previous paragraph, a creator to more explicitly turn those into a contract of some sort.)

So this particular avenue of attack can't be trivially spread across all Big Tech censorship.

It would also be interesting to see a legal analysis of what happens if a conservative were to use Twitter to form contracts, especially a contract which includes elements that involve using Twitter (e.g., "I promise to respond to your private DMs over such-and-such a time on Twitter in return for this $$$"). (Without that element, Twitter may be able to kick you off and claim that fulfilling your contract at that point is your problem, as they never promised service, and the contract would otherwise still be fulfillable if it didn't contain Twitter-specific components.) I'm not saying this is an obvious win; I'm saying an analysis would be interesting.

The upshot of my comment here, which I did not intend to get this long originally, is that the exact case filed against Patreon here may not be something that can be spread around to other tech companies, but there's a lot of related questions that are at least interesting.

Blogger Nostromo August 08, 2020 12:15 PM  

I've been following Vrei for about 6 months now. His coverage of the Gen. Flynn case isn't as sanguine as it used to be. When the panel decided for the writ of mandamus he was almost assured for victory. But then the Enbanc decided to het involved... the whole court is mostly Democrat, and they have limited the question to 1 subject. "How can there be a writ, if the presiding judge is still deliberating? To normal people, it would be a moot question. Both prosecution, and prosecuted agree to no crime was committed. Only the judge hired his "own" prosecuter, and went ahead with a trial, which is beyond his purview constitutionally. But thg his constitutionality will not be addressed in the enbanc hearing.

Blogger Laconic August 08, 2020 1:44 PM  

Doing that would only create more bears

Blogger Laconic August 08, 2020 1:49 PM  

Everytime i see a new tos email notification from various companies now i instantly suspect vox had something to do with it and he pops in in my mind with that mischievous smile of his :)

Blogger Rabid Ratel August 08, 2020 3:53 PM  

Laconic wrote:Everytime i see a new tos email notification from various companies now i instantly suspect vox had something to do with it and he pops in in my mind with that mischievous smile of his :)

Interesting is that VD can analyse and find the weak spots faster than they can come up with a new ToS. Mind you, with all this frantic rewriting it seems as if the quality of the ToS are taking a nosedive.

Blogger VD August 08, 2020 6:23 PM  

Interesting is that VD can analyse and find the weak spots faster than they can come up with a new ToS.

It's really quite simple, because they can't possibly accomplish what they're trying to accomplish, which is ruling out all accountability on their part. So the weak spots and contradictions will always be there as long as they seek to avoid responsibility.

Blogger Crew August 08, 2020 8:38 PM  

My wife just saw Vox on his latest Darkstream I was watching and said:

Wow, how come he looks so young and yet has no hair?

Blogger Jad August 08, 2020 9:41 PM  

"The poop is everywhere!" My new favourite quote.

Blogger Gregory the Tall August 09, 2020 4:13 AM  

@26 Jad
"Look up to the stars. Pay attention to the streets."
Wilhelm Raabe, German author (1931-1910)

Blogger Pathfinderlight August 09, 2020 4:15 AM  

Unfair business practices stifle commerce.

Blogger Seeingsights August 09, 2020 12:47 PM  

The legal commentator, who is very good, says that Patreon came across comments by Owen Benjamin on other platforms.

This is what I think happened: some Social Justice Warrior showed the comments to Patreon, in the hopes of getting Owen Benjamin cancelled. Green haired, nose ring wearing employees at Patreon obliged.

Tech censorship is being done not by those with a legal or a technical education, but mutant freaks.





Blogger map August 09, 2020 7:38 PM  

Comcast's terms of service gives you a chance to opt out of binding arbitration in the first 30 days of opening a new account.

Blogger Akulkis August 09, 2020 10:59 PM  

>> Tech censorship is being done not by those with a legal or a technical education, but mutant freaks.

Well, DUH.

SJW's, having addled minds, do not have the logical skills to be actual techs, let alone programmers or engineers.

Blogger OneWingedShark August 10, 2020 10:31 AM  

Pathfinderlight wrote:Viva Frei has taken issue with constitutional arguments against big tech censorship before. He clearly enjoys Patreon being hit with tortious interference as an example of how to hit the giants where it hurts...their own terms of service.
The problem with most so-called Constitutional arguments that are [or could be] put in play is that they are not based on the actual Constitution but upon "legal hearsay" — for example, the First Amendment explicitly prohibits Congress from enacting certain classes of law: this [Congress] is not States, Counties, Municipalities, Individuals, nor Corporations.

However, there are arguments that could be made using the Constitution, for example the Constitution clearly prohibits Ex Post Facto law to the federal government, and also to the States; the corporation, being incorporated in and by the Authority of Some State cannot gain powers which the State itself does not possess. (As Jesus said: "The messenger is not of more authority than the one who sends.") — Therefore the attempt to retroactively alter the Terms of Service and legally bind them [transitively] via contract law is a violation.

Seeingsights wrote:The legal commentator, who is very good, says that Patreon came across comments by Owen Benjamin on other platforms.

This is what I think happened: some Social Justice Warrior showed the comments to Patreon, in the hopes of getting Owen Benjamin cancelled. Green haired, nose ring wearing employees at Patreon obliged.

Tech censorship is being done not by those with a legal or a technical education, but mutant freaks.

This is true, but until thee sorts (and especially HR) are held to account, these things will continue. What is completely mystifying to me is how more HR departments aren't having their feet held to the fire: especially in tech, there's big companies that have job-postings up for YEARS (and complain about not having the ability to find qualified people as part of the H1B & OPT scams) aren't ever considered for what they are: the company losing money due to that position continuing to be unfilled.

Blogger Akulkis August 11, 2020 11:03 AM  

Accountability among the HR SJWs will eventually come by the same means as the political SJWs -- violent termination.

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