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Proven initial request

[Music] hello and welcome to another episode of virtual legality i'm your host richard hogue managing member of the hoglaw business law firm of northfield michigan and today we're going to talk about parlor's response to amazon's response to parlor's complaint alleging that amazon had engaged in unlawful activity and anti-trust violations and breach of contract for threatening and then in fact suspending parlor off their service parlor wants to call that a termination they're probably right on that in the long run but one of the things that we talked about in earlier videos on this channel was that that distinction probably wasn't a difference under the law and i wanted to talk about this response this is a couple of days old i think it was filed on friday or so of last week because a number of you came into my comments and said this was a really good response from parler and that you had heard other people on youtube and elsewhere talk about how it was a good response and i think there are some good aspects of this response in this document there are a number of aspects however that as you can see from the thumbnail of this video i think really stretch the truth almost beyond its breaking point and if you're not familiar with lawyers you know we're not supposed to say bad things about colleagues we're not supposed to disparage other members of the various bars and so i will not do that here except to say that this is the kind of document with some of these claims some of these paragraphs that i could easily see getting the book thrown at the attorney and the client in question because they really are taking some steps that are pretty obviously wrong in order to frame their case as something that is stronger than it in fact is so with that as background and with the further background that i still remain not terribly thrilled with all of the power that all of these companies have over being able to see anybody any application whether that's parlor on the one side or anybody else you can think of on the other side i don't love that that's happening i think the law needs to be looked at i think we need to really be examining how these companies especially especially infrastructure companies like amazon web services function that's not the world in which we live right now in the legal structure that we have and so my job in virtual legality is to talk to you about what i think are the strengths and weaknesses of the arguments presented so let's take a look at this parlor response we also have the benefit of a little extra hindsight because some stuff happened over this weekend related to parlor that we can talk about that suggest that some of their claims in this document filed with the court have turned out giving the benefit of the doubt to be wrong that they probably are pitching their irreparable harm the harm that came from getting kicked off of amazon web services is maybe a little bit too much and so that is also going to suggest that they aren't going to win the temporary restraining order that they are asking for and that's part of this story as well so let's start as with its suspension of service to parlor aws that's amazon web services that's the cloud server technology company that amazon uses to provide these services to parlor opposition to parlor's tro motion depends on speculation and falsehood for example to avoid a clear 30-day notice requirement for terminating its contract aws claims its action against parlor was a suspension not a termination but the indisputable facts show that aws's action was termination as aws officials told parlors officials that there was nothing parlor could do to get its service back now we are 100 going to talk about this contract we've talked about it in the past two videos where we have talked about this lawsuit but we definitely have to talk about it here because they are now in their opening paragraph what they think is their strongest argument telling the court that amazon is lying about their rights under the contract and i want to tell you right now having read the contract this is wrong that amazon does have an additional right that parlor continues to ignore and you might say well they think they have a stronger argument with the section that they reference and that might well be true but what you don't do with the court with most courts i can never speak for any given judge is just ignore the portion of the primary document that goes against you you go and you look at it and you figure out how it doesn't apply because you want to reference it to the court you aren't hiding any balls you aren't hiding anything behind your back and you're going to say why it doesn't apply and why our argument is better court instead not once does anything from parlor either in the complaint or in this response to amazon's response actually talk about the section that is so problematic for them which is amazon reserving the right to terminate anybody immediately if they otherwise have the right to suspend them a right that they don't actually challenge parlor doesn't actually say amazon doesn't have here they're really talking about termination and trying to steal a rhetorical base in a fashion that i think is not wise when facing a court and requesting a court order like this one continuing aws opposition relies heavily on the assertion at seven page seven of their answer that parlor was used to incite organize and coordinate the january 6th attack on the u.s capitol but amazon offers no evidence to support that assertion only unsupported speculation from reporters we pointed that out in the answer video that we did on amazon's answer to parlor that they just referenced things like a recode vox article in a new york times article and parlor's right to point that out say hey look you have no evidence that there's any tie here and in this next sentence they say amazon has confirmed that none of the arrested participants in that unconscionable act even had a parlor account that's good strong evidence that parlor is bringing that the tie from the capital riot to parlor is perhaps not as strong as amazon is asserting but that probably doesn't matter at the end of the day amazon doesn't have to make that tie in order to give them the right to claim a breach of the contract they only have to point out that the january 6th attack happened and that effectively the world changed after that point in time and that's going to be one of parlor's primary weaknesses in this particular response for each claim parlor has demonstrated a likelihood of success so just another brief primer if you haven't watched the pre prior videos in virtual legality on this topic parlor is asking for a temporary restraining order they are asking the court to restrain amazon from suspending their account off those services in order to win a temporary restraining order they have to show some combination of these four factors in which the court ultimately holds that their side of the scale is weightier than the side of the scale favoring not issuing the temporary injunction so likelihood of win that they have to say we're going to win this court case when it's all said and done we would be harmed irreparably we couldn't fix it if you didn't give us this temporary restraining order and then it's more fair to favor us over amazon and the public is better off if you favor us over amazon so they go down this list and we're going to try to treat with this a little bit more quickly than our prior videos because they're kind of now hemming and hawing at each other and just responding with yo no it is no no it isn't and so we see parlor once again double down on we are going to win because amazon not parlor breached the party's agreement amazon claims that parlor failed to identify the specific term of the contract that amazon breached yet parlor quoted from the specific term of the contract section 7.2 b we'll look at that in just a second and that section entitled termination for cause you'll see the red highlight here only allows for termination for a material breach of the agreement if that material breach remains uncured for a period of 30 days from receipt of notice by the other party indeed that is one thing that it provides for and thankfully we can take a look complaint exhibit b at page six we can actually look at their version of the document that we've previously been looking at online just to confirm that we didn't have a stroke and misread all of this that they didn't have some kind of different document with amazon and indeed they didn't in 7.2b this first part you can see exactly what they say either party may terminate this agreement for cause if the other party is in material breach of this agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party no later than the termination date you will close your account that is in fact a right under 7.2 b you might however notice in reading this that that is romanette one i and there's an i i which means that there is an additional right on top of both parties having the right to end the agreement for material breach there's a second right that says we may also terminate this agreement when immediately upon notice to you for cause if we have the right to suspend under section six we go back to section six and we see this is the section in which amazon reserves the right to do exactly what it did to parlor which is to suspend parlor we may suspend your or any end user's right to access or use any portion or all of the service offerings immediately upon notice to you if we determine things like your stuff poses a security risk to either the offerings what we do or to any third party or if you are otherwise in breach of the agreement amazon says we determined your stuff posed a security risk we're allowed to do that if we determine it poses a security risk we can suspend now they focus on temporary suspension here but the don't see the word temporary actually in the operative provision and headlines headings for these various sections of the agreement generally aren't operative they aren't changing the legal rights and obligations of what the parties do they're effectively used as bookmarks so we know where to read these things so amazon says we can suspend you if we find that if something poses a security risk and if we have the right to suspend you romanette 2 comes in and says we may also terminate the agreement immediately now you might say well that says upon notice to you and you say they didn't give notice but understand what parlor is trying to do here is trying to say what amazon has done which they have framed as a suspension is actually a termination and because it's a termination they should have had to have given 30 days right to cure they didn't do that so they're in breach when amazon is operating within the terms of their agreement they are operating within section 6 which leads to 7.2 b which leads to 7.2 b2 a and says hey we can do this if we have the right to suspend which means if parlor were to win this argument and the court were to say all right amazon you've had these conversations they say amazon has told us we can't fix this relationship so it counts as a termination amazon says okay fine then we can terminate the same moment we decide to suspend under that 7.2 b2 and so that's what we elect to do which means the court doesn't have any way to redress that grievance because there's no grievance because amazon continues to not be in breach of their agreement but note here the problems for parlor i'm not saying if you're parlor's counsel you don't go and you try to make every strong argument you possibly can but the court will not look nicely on things like the only way to allow termination is in roman at one when we can look at romanette 2 and this is an additional right we may also terminate for this other set of conditions this isn't the kind of thing that wins you the day and too many people are skipping it when they talk about whether or not amazon breached their agreement too many people are taking it on faith that parlor is telling the whole story when you can look at the document yourself and see that they are in fact not now they then present a relatively compelling set of facts and a story that says that amazon wasn't unhappy with parlor prior to about january 6th 7th 8th and 9th at no time before january 9th did amazon notify parlor that parlor was in material breach of the agreement thus blindsiding parlor and in fact you can see why that 30-day notice period is so important to somebody relying on infrastructure if they'd asked me to take a look at this agreement for them back when they signed it a year ago or whenever it was that they did i would have pointed out that amazon has this ability to go around the bend determine they can suspend and then immediately terminate and then if you are invested in infrastructure of another's company that is an existential risk to your application sometimes the client looks at me and says okay that's something i can accept because i trust amazon i don't think they're going to do these very bad things and they have they've reserved that right but i have to enter into these agreements in order to get my application out there totally understandable but you don't just get to pretend like it doesn't exist that amazon didn't effectively reserve those rights in the customer agreement that you've entered into with them but the reason i flagged that for clients is that ordinarily what you want is if you're investing in the infrastructure of another company is you do need a notice period and you do need some transition help you do need to say okay if this is all going to fall apart i need 30 days or maybe more 60 90 days that says i get to sit here for a while to figure out where my next step is going to be so that i don't have what parlor has which is i'm cut off on sunday i'm gone and then what do i do to make my business work continuing in the period up until then january 9th amazon implicitly assured parliament never liked to have to use the word implicit uh in a legal document because it means they didn't actually say this implicitly assured parlor that the two companies had a positive relationship that would continue into 2021. for example from the beginning of the contractual relationship and repeatedly throughout amazon was aware of parlor's reactive rather than prospective content moderation policies using a jury system we do things differently we're gonna have people review it in a jury system i don't pretend to know how parlor works but it's clear that they work differently from twitter and facebook and youtube and they say amazon knew this from the moment we started this amazon knew this was what parlor did and never before january 8th did amazon express any concerns with that system okay it doesn't mean that you weren't necessarily in breach and it does mean that something might have changed between january 6th and when they ultimately suspended you from the service and when we talk about private companies operating on business reasons they are allowed to evaluate the world in which they live and to see hey you know what something has changed which in fact parlor is going to make the case for them amazon again attempted in mid-december 2020 to sell part of the proprietary software that would permanently attach parlor to amazon's hip yep that's that's what amazon does that's what infrastructure companies do not once during this time did amazon inform parlor that parlor's system of handling this material was inadequate or that parlor was in breach of contract now when we're talking about all of this parlor not being in breach of contract is what parlor is focused on right parlor if parlor is in breach of contract they don't have a lot of arguments to really stand on and so they keep trying to say parlor wasn't in breach amazon knew they weren't in breach and this is all in bad faith because as we've talked about in virtual legality before you can look at the black and white letters on the page and say they might say one thing but amazon still has an obligation as every contract in the united states really does to operate with good faith and fair dealing meaning that they can't just interpret their words in a way to just benefit themselves protectually they can't lie about it they can't do various things that are otherwise in bad faith and parlor's trying to make that claim without actually saying that which i would like them to do if they were going to actually move all the way down that field but that's what you're looking at right here not once during this time did amazon informed parlor that parlor's system was inadequate or that parlor was in bridge of contract we can't fix what we don't know about judge this is unfair amazon pledged that it was definitely in this journey with parlor regarding abuse supports it expected twitter would experience more abuse reports now that amazon was handling its timeline workload which they bring up here not just to make this point but also to point out that amazon had actually talked to parlor about taking on twitter's timeline workload which parlor rightly thinks is a potential conflict of interest because twitter is one of its major competitors and this was the moment in time that parlor thinks they were going to eat into twitter's user base amazon responded that parlor should consider the matter resolved about problematic content after twitter banned president trump on january 8th the increased new users and activity caused parlor to go down for seven hours resulting in that backlog of 26 000 instances of content that potentially encouraged violence that was mentioned in the amazon document in which i pointed out the ceo probably didn't need to say in that context it would be interested to actually see the transcript of that phone call or zoom call or whatever that wound up with the ceo of parlor saying yeah we have 26 instances of backlog especially when it's explained by his council a couple of days later as effectively just being related to a breakdown in services on january 8th because so many people had joined parlor now we don't know if that's 100 case or not but we do know that they are now attesting to the court over the next two days parlor was able to systemically or systematically remove almost all of this content which progress was reported to amazon and within 48 hours by the end of sunday when amazon shut parlor down parlor had removed all but some 1000 problematic posts now that sounds like 48 hours after the end of sunday which is parlor not taking on any new messages so i'm not sure that's as impressive as they have made it sound here but it's still a story worth telling parlor is trying to establish for the court that regardless of this breach argument regardless of the other stuff that we're going to talk about with respect to cda230 and things that maybe hogue at hoglaw doesn't love so much the fairness principle is that amazon clearly blindsided us they had no reason to do so they knew how we were operating right until the last minute and then they crippled our company and they crippled the company that was a competitor with one of their other big clients and they can create this kind of very bad things picture that if we separate it all from the legal framework and we just look at it as an equitable question a question of justice and fairness which by the way is what they are asking for this is an equitable decision by the court the court doesn't have to be bound by the black and white letters of the contract or anything like that it's a balancing of four factors that the court gets to determine how they were balanced and whether or not the court is persuaded on an equitable point that if you just look at this in terms of fairness judge that you'll go with us because amazon was a bad actor they have unclean hands they wanted to destroy us and maybe you should help us out furthermore despite media attempts to tie parlor to the capital riot not one person that the news media has reported so far was arrested for the riot and has a parlor account additionally amazon claims it's suspended and did not terminate the account however the agreement only authorizes a temporary suspension and two things make clear that there was nothing temporary about amazon's actions again we got to go back here and note that when we were talking about suspensions it says temporary suspension but it also says we may suspend your right to access or use any portion upon notice if we determine one of these things and in all honesty this section is not written with a lot of protective detail for the actual end users or the customers of amazon ordinarily you'd like to see this say okay and it will last for this amount of time and we will give a notice of what the problem is and maybe tell you how you would fix it and do these other things this just says we can suspend it if we find any of this stuff and if we can suspend it we can terminate it i am not telling you that this contract from amazon is terribly fair to the amazon customer it is not this is the kind of thing i would flag but this was what was signed and agreed to by parlor which is what we are looking at right now going back to this question then they try to establish that amazon is lying it's not a temporary suspension two things make clear that it's a termination nothing parlor could do to continue its relationship with amazon according to the agreement's plain terms a termination for a material breach required 30 days notice it does not we just talked about that why would amazon so willfully breach its contract with parlor okay so we've skipped ahead right they've now established in the opening paragraph now in four paragraphs in the middle of their response they have breached their agreement because they didn't give us 30 days notice but we aren't going to talk about that other romanette and look you can make a weak argument that it doesn't apply somehow or that it was never intended to be read that way or that amazon is abusing its discretion you can do these kinds of things parlor doesn't even hand wave at it so it looks like they're hiding from it and i really do think that's ultimately going to be a loser for them so when you skip to the next paragraph why did amazon so willfully breach and if you aren't convinced that amazon did this all becomes noise first amazon was getting pressure from its progressive employees to use the capital riot as an opportunity to suppress conservative voices now that's framing as to what pressure amazon was getting but here's where i start to think parlor actually makes amazon's case for it one of the things that amazon will be arguing and really did argue in part in their answer in opposition to the temporary restraining order request was that they had a reasonable business justification to do the things that they did that they were trying to prevent public harm that they were trying to reserve the right to prevent violence to be put forth on their services that they were trying to do all these various things that had a business reason now i think looking behind the scenes even from amazon's response you could say the business reason is that on january 6th a lot of pressure started coming down against the tech companies from all over the place the reason that parlor and amazon can quote the new york times article and quote that vox article and quote a bunch of other articles about how social media contributed to our current troubles is that those journalists and those forces are trying to put a lot of pressure on social media and amazon can look at that from a reasonable business justification and say yeah that changed on january 6th and so what was acceptable before then that we could kind of allow in the gray area we did a re-examination and that's what we do we look at the contract and say you know actually i think that's in breach we're unsatisfied with your ability to moderate and under the contract that we have we can probably do that another argument would be that hey we've got our own employees we've got our own labor we've got our own concerns that's a business justification right getting pressure from its progressive employees skip the rest of the description of what's happening if amazon employees are saying we don't want to service this party and amazon has a reasonable way to say that this party is in breach of agreement and i think they probably do then amazon can go and look at this and say that's a reasonable business justification we got to help maintain the ship over at amazon second amazon apparently wanted to support the effort in some circles to deny any meaningful social media platform to trump while at the same time protecting its major client twitter now if you don't go all the way into we had an illegal restraint of trade and a tacit agreement with twitter to kill all of twitter's competitors then just protecting a major client is not actually anything that isn't a business justification right and they're gonna argue of course that twitter and amazon are in a conspiracy of trust that is designed to restrain trade and if they could get there then that's its own proof but when you're talking about business justifications you say well we have to help our employees our employees don't want to do this and we think we have a breach claim we have to protect our major client it doesn't look great but it might be the kind of thing that gets you out of actual legal trouble so parlor's making these arguments and certainly protecting the client twitter is the one that looks the worst that's the one that they keep bringing up because if they can really prove that there was some kind of tacit agreement then you probably can at least get in the door of discovery of an antitrust claim amazon says there's no agreement at all then we look at the actual tort that was claimed from parlor this is the tortious interference which amazon i think rightly discounted by effectively saying if we agreed to something in a contract and then we did what we said we could in the contract then you don't have a tort claim against us you see once again how parlor's argument kind of falls on its face where they say this argument collapses amazon's does on the face of the fact that amazon did not suspend but rather terminated and did so immediately without waiting the required 30 days which of course we know now wasn't required at all we may also terminate this agreement immediately if we have the right to suspend so they if they have the right to suspend which really isn't argued so much here they don't have to give 30 days and so this sentence again is wrong and you start to add up the sentences that a judge is going to look at and say that's wrong that's wrong that's wrong that's wrong why should i believe you on this next paragraph right amazon further posits that parlor didn't allege interference for an improper purpose or done through improper means and they'd say they did allege political animus which i said is nothing and that's not really something that you can bring up in this context and to reduce competition in the microblogging services market to the benefit of twitter is that's the antitrust complaint but they bring it up as a tortious interference when there is a contract i think really strongly that that's going to be a loser in and of itself so then we get to the sherman act right so they say well amazon says we didn't attest that there was any agreement between amazon and twitter and that's basically true but we indicated that there is powerful circumstantial evidence of an agreement or conspiracy to restrain trade in violation of section one and then they quote a case that says you may rely upon circumstantial evidence the problem that they have is that yes you can take effectively the shadows of a illegal anti-trust violative agreement and say well look how these companies are behaving and that must mean that they had this agreement to do this thing but it doesn't really look like that right all they can say right now is that amazon moved against parlor at the moment when they think that they would have had the most success against twitter that's their best argument by far but at the same time other companies were moving against parlor that really don't have a vested interest in seeing twitter's success and so you start to have that fall apart it's not powerful circumstantial evidence it is perhaps circumstantial evidence but it's a high bar to bring a sherman act claim in general antitrust is a really weird area of law and because we want to encourage competition which in and of itself is a kind of destructive act we want to see these entities compete and win market share and that's going to take market share away from other people and what we want to punish is things that we consider to be unreasonable in that scope as we've talked about with respect to monopolies and epic versus apple and other legal questions surrounding antitrust law that because it's so amorphous this still to me feels like a very weak claim and especially with the contract out there that after january 6th amazon looks at it and says we don't want to be in the business of people that aren't moderating more strongly seems to be justified even and this is important even if you don't agree with it if amazon believes it then the court and the law is going to allow it the real problem that you have if you're amazon is if somebody like parlor comes and says you're lying that you don't actually care about this stuff that it is purely pretextual and that's what they're trying to establish here that amazon didn't care they didn't care until january 9th they didn't do anything they were on calls with us they had zoom calls we had a grand old time talking about it but january 6th is an important date because that does change people's thinking it changes the reputational harm that might attach to these various companies and you don't have to think that's appropriate either but the executives of these companies do have to take that into account so you can think they're all bad actors and they're trying to do these things like quash political speech and hurt parlor specifically for what parlor represents you can also look at it the other direction and say well once all those articles come out once everybody hates parlor once everybody is reacting and maybe you can think it's hyperbolic but their reactions after january 6 that you have to take those into account as a business and that changes the economics that changes the thinking about what you need to do about the people that are using your infrastructure services next amazon lacked a legitimate business reason to terminate i think we just spent a solid 60 or 90 seconds talking about why i think amazon can easily kind of craft that argument and they did in part in their answer but sherman is just going to be a difficult claim to make despite the fact that they say that it's a quintessential section one claim then you get into some really bad lawyering or bad arguments let's not call it bad lawyering right we're going to be con collegial with other members of the bar section 230 does not bar parlor's interference or antitrust claims now i have to walk you through this one because this is pretty ridiculous amazon's immunity defenses under 230 c1 and c2 remember that c1 and c2 of the communications decency act the cda which amazon correctly does not assert against parlor's breach of contract claim right it has nothing to do with whether a contract was breached or not also fail amazon's 230 claim fails on a plane reading of the statute 47 usc 230c one we're talking about one now simply forbids any provider or user of an interactive computer service from being treated as the publisher or speaker of any information provided by another information content provider here parlor does not attempt to treat amazon as a publisher or speaker nor could it that doesn't even make any sense amazon is an interactive computer service as is parlor thus c1 by its term shields amazon from liability only for actions or statements authored by someone else but it is not a complete part of liability for all wrongdoing what are we even talking about here judge c1 doesn't even apply and in fact if we go and we look at that we see that 230 c1 doesn't apply so much 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 now i have a theory and this is all speculative but one of the things that parlor will have undoubtedly been facing a lot is pressure from the things that are written on its service parlor's best defense against being liable for any of the things that are written on its service is 230 c1 which is to say that parlor a provider of an interactive computer service is not treated as the publisher or speaker of the information provided by another so when somebody writes something on parlor parlor isn't responsible and parlor knows that law parlor relies on that law parlor lives on that law so by the way it is twitter and facebook and youtube and all these other places they need that law that isn't the law that matters here at all right if we actually go and we look at amazon's argument about cda230 then we see that they reference not c1 but c2 right and c2 actually says no provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider user considers to be obscene lewd lascivious filthy excessively violent harassing or otherwise objectionable whether or not such material is constitutionally protected that's the important thing because what did amazon do here they took an action voluntarily and we can argue good faith although that doesn't happen in this particular document that restricted access to or availability of material namely all the material on parlor and it says no provider or user of an interactive computer service shall be held liable on account of this now there are juxtapositions between the antitrust act and criminal law and other specific carve-outs from cda230 that aren't really implicated here and you could argue them but not if you're arguing completely in bad faith as parlor does here where they say hey c1 doesn't apply at all and we basically never talked about c1 at all if we go back to amazon's answer they say in addition to their facial deficiencies parlor's interference and antitrust claims also fail under not c1 but c2 of the cda under that statute the provider of an interactive computer service is immune for acting in good faith to restrict access to material that is excessively violent harassing or otherwise objectionable they quote it in their answers specifically that is precisely what amazon did here removed access to content it considered excessively violent and harassing and their answer is c1 doesn't apply i don't know what this is this is again another slide of hand this is where it really stretches the truth for the parlor council to just go out and say i don't know what they're talking about judge c1 doesn't apply when amazon put in a footnote a reference to c1 but doesn't actually describe it whereas here a party is attempting to hold an interactive computer service liable for its own unlawful conduct and not for the conduct or speech of others 230 poses no bar that's true with respect to c1 but c2 provides an absolute immunity for restricting access to things you find bad now they do put in a footnote another kind of argument here that i find incredibly wanting on this further 230c2 which is what amazon actually said applies is covered here in footnote it only shields interactive computer services from liability for actions voluntarily taken in good faith to remove as alleged here excessively violent and harassing content well no it's broader than that right now they say as alleged here to kind of say that amazon is leaning on the excessively violent and harassing content but amazon is generally protected and their actual answer doesn't change the shield provided by law for anything they find objectionable and you see this highlighted in red because we've covered cda 230 a lot in this space i don't love that language i think this provides a lot of discretion to these platforms to these entities that probably should be better contoured by regulation and by law that to have this effectively says if we don't like republicans if we don't like democrats if we don't like god forbid libertarians then we can kick all of their stuff off because we find it objectionable and you're seeing that writ large really across the social media landscape where people that have the views that are deemed to be objectionable by these various services are getting kicked off and find that they have no redress because of 230 c2 which says we can do that if we voluntarily take it we can restrict access to our availability material now parlor's argument is a little distinct from that they say that amazon hit with too large of a cannon amazon does not and cannot claim that the entire parlor service was excessively violent and harassing content and the plain language of c2 therefore cannot shield it from liability this isn't 100 wrong instead amazon's decision to fully remove parlor despite its millions of accounts fully compliant with amazon's terms of service undermines any claim that it approached this decision with the clean hands necessary for 230 c2 immunity now they say clean hands which is talking about that good faith element that you see referenced in the law itself right you have to be acting in good faith the problem is is that this is an incredibly broad shield any action taken in good faith amazon can go look at that and this is in fact what amazon said in their email and what they said in their answer and say we don't believe that you can keep this stuff effectively off your service at that point in time if we don't believe that you can keep it off your service that means the next minute there could be something that we find excessively violent harassing filthy lascivious or otherwise objectionable and we can take any action based on that as long as we aren't lying to restrict access to our availability including kicking you off the service in this case suspending your rights to access the service and under which we also reserve the right to terminate the agreement in its entirety so this argument here that they can't take such a broad base because maybe and just to take this to its absurd adam certain limits there was one message that wasn't excessively violent and harassing that was just a happy mother's day message put up on parlor is not what 230 says amazon the internet service provider can take any action in good faith to restrict access and if that means restricting all of parlor and it's in good faith then amazon can do that so parlor tries to establish here that amazon's acting outside of good faith and they don't hit it heavily enough but they do it by misframing the 230 argument really using c1 instead of c2 addressing c2 faulty in a footnote and then clapping their hand and saying well i guess we got done with that argument didn't we judge and you look at that and you say this was really when i decided to make this video was looking at the 230 argument saying oh my goodness no and so you're left with if you've read these kinds of things before you've looked at the communications decency ads you've looked at all these things you're left with a parlor document that even if you want to give it credit for establishing a nice story about how amazon probably wasn't doing anything to them and they didn't have enough time to react and amazon should have given them time even if their contract doesn't require it that with them claiming that the contract does require it and cda230 c1 is bad but c2 doesn't even apply and all this other stuff winds up with the feeling that it's porous it's full of holes and really making me if i were the judge disinclined to grant them any of the good stuff that they otherwise put in the document some good stuff of which is in these last couple of sections by establishing a likely threat of extinction if the tro is not granted parlor has demonstrated that it will suffer irreparable harm i fully agree that parlor did a decent job establishing that there would be irreparable harm if it wasn't immediately restored to its cloud networking services amazon does itself a disservice in their answer really hand waving it and saying no there's no irreparable harm it's very short section i pointed out in my prior video that it was so short because amazon didn't really have a great argument against it parlor in their answer here or their answer to the answer says parlor had some hope that it could quickly procure another online host and begin to recover from the effects of amazon's sudden and highly publicized break the effects of amazon's actions have proven much more catastrophic if you watch that prior video you'll see that this is effectively what i suggested parlor would come back with which is that amazon argued that parlor's ceo says they'll be back in 12 hours they'll be back really soon and then parlor goes and says oh well they poisoned the well amazon did this so publicly and created so much negative goodwill towards our company that it didn't come back as fast as we thought it would which is in fact exactly what they say right here the notoriety and fallout from the breakup have driven away current and potential business partners utterly frustrating parlor's pre-termination plans to quickly replace and recover from amazon any good company would have had a backup plan and it sounds like parlor did but their backup plan and maybe their backup backup plan said no after this very very public breakup and so i think they can demonstrate irreparable harm until we get to this weekend then you see another good argument that parlor makes about the balance of equities in the public interest although amazon briefly speculates against logic that it will risk greater pro parlor outrage if ordered to reserve course and in fact amazon also reserves the right to say we wouldn't be able to effectively end other agreements for breach if the court were to reverse this one it otherwise fails to deny that the amazon itself would suffer little to no inconvenience if enjoyed from abandoning the bargain into which it knowingly entered said another way they combine the public interest into the balance of equities right and we commented on this when we looked at this and amazon tries to take on all of the public threat amazon tries to say if we had to restore this the public would be injured there could be damage to the public they also try to say okay there could be damage to amazon if there are organized actions against amazon but parlor rightly calls out that they are separate components of the standard foreign junction that the balance of equities the fairness side of things is different from the public interest side of things and amazon tries to combine it because amazon feels that the strength of its argument lay in the public interest rather than the fact that amazon just having to restore them to their service for maybe 30 days is not the biggest deal in the world to amazon barely moves the needle as to how they function but it is an existential threat to parlor and i do again think that parlor probably has the better argument for if it's an existential threat it is irreparable harm the equities might lean towards parlor if you did agree with their complaint that amazon was in breach of their agreement which again i think is a stretch but if you agree with those kinds of things you can see how parlor has the balance of equities on their side first amazon is fully aware that parlor's content moderation issues that arose in the wake of last week's violence at the capitol were attributable to exceptionally acute infrastructure stresses precipitated by an unprecedented spike in new parlor users and exacerbated by amazon's eventual inability or unwillingness to help their own client cope with these technological problems now again this is the kind of thing which sounds good and says hey this is why the balance of the equities favors us amazon can't make the claim and amazon didn't help us and this was a specific circumstance because we were growing so large and so fast but it would be a breach claim this is where you come after amazon if amazon is doing something and breach their agreement they were unable or unwilling to help their own client this is where you hit amazon with a hammer it suggests that parlor doesn't believe they have a breach claim under the contract and if they don't then amazon doesn't have a duty to do anything that's outside of the contract that they've entered into with parlor so you have these areas of weakness in other areas that are strong i think they can claim irreparable harm i think they can maybe claim the balance of the equities i think they lose on the public interest and i think they lose on the likelihood of a win on the merits which means that the court in my opinion is unlikely to offer any help to parlor on this question now really solidifying that is that over the weekend you wound up seeing that parlor had found a new domain host so we've got now the parlor.com website still not functioning as parlor not as a social media micro blogging site but with a message from the ceo that says now seems like the right time to remind you all both lovers and haters why we started this platform we believe privacy is paramount and free speech essential especially on social media our aim has always been to provide a non-partisan public square where individuals can enjoy and exercise their rights to both we will resolve any challenge before us and plan to welcome all of you back when soon we will not let civil discourse perish now parlor wants to exist so it's fighting a fight on two fronts if they want to exist they have to find some kind of alternative to amazon very quickly because they're probably burning cash or they're not making the cash that they thought they would make etc etc so they have to get back on the web soon but the faster they are able to do that the weaker their case against amazon looks where amazon can say they weren't irreparably harmed at all we helped migrate their data they had to lose maybe a week but we had the rights under the contract why are we even here in court judge and in fact when the parlor ceo went on i believe it was fox news it further exacerbated the weakness of their argument the ceo of the controversial social media platform parlor is confident the site will be live again by the end of january he told fox news sunday night which means that in all of 12 or 13 days from now we would expect or the ceo expects parlor to be back so when they make arguments like this to the court just a couple of days before that says it's irreparably harmed will never be back and it's all this damage you need to make that argument but you need to do it in a way that probably isn't going to be undercut two days later when you have your ceo your client go out in a public forum and say ah we'll be back by the end of the month no worries we'll be back and so at the end of the day you've got an answer document which i was told by a lot of people was very strong has some strong elements don't want to discount those but really stretches the truth in places especially with the contract breach claim especially with the cda230 stuff and because of those stretches i really do think that everything else that might potentially be strong and and might even result in some kind of tangible antitrust claim is really going to be discounted at the court level and if parlor comes back by the end of january really all of this is moot in any event this has been virtually galley for today i hope you enjoyed this video if you did like subscribe ring bells tell us all what you want to hear uh in the next video in virtual legality share it with platforms that otherwise are available probably not available on parlor uh if you caught this on youtube thank you so much for watching and if you listen to it as a podcast thank you so much for listening and i will catch you on the very next episode of virtual legality virtual legality is a youtube video series with audio podcast versions presented as commentary and for education and entertainment purposes only it does not constitute legal advice and does not create an attorney-client relationship if you have legal questions about the topics discussed please consult your own legal counsel [Music] you