Parler v. Amazon Dies. Is Reborn!

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👍︎︎ 1 👤︎︎ u/AutoModerator 📅︎︎ Mar 06 2021 🗫︎ replies

Thanks for for heads up.

I do enjoy legal eagle

👍︎︎ 6 👤︎︎ u/xraike 📅︎︎ Mar 06 2021 🗫︎ replies

Parler? I hardly knew her

👍︎︎ 5 👤︎︎ u/iamahotblondeama 📅︎︎ Mar 06 2021 🗫︎ replies

I'm somewhere where I can't watch a video. What's it about I'm 3 sentences or less?

👍︎︎ 3 👤︎︎ u/LancLad1987 📅︎︎ Mar 06 2021 🗫︎ replies
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- In the wake of the mass hysteria, that was the January 6th riots at the US Capitol, a lot of people felt something anything had to be done and social media was the immediate first target, first President Trump was banned from using Facebook and Twitter, then Google and Apple made the decision to remove Parler from their app stores, some billed Parler as a bastion of free speech and light moderation, others said it would cater to conservative voices, others just said it was filled with hate speech but the companies justified their actions in removing Parler by noting that Parler was used, to both insight and organize events, that unfolded at the Capitol on January 6th. - What else was I supposed to do, the guy I wanted to win didn't win? - And it all came to a head, when Amazon decided to suspend Parler's access, to their web services platform in taking down this harmless, right-wing alternative to Facebook, millions of individuals were left with no means of sharing, their legitimate political views or plans, to organize peaceful protests, without the oversight and intrusion of Facebook and Twitter's clearly biased fact-checkers and haters of free speech, at least that's what some people want you to believe. - [Narrator] Brought to you by Mack Weldon. - Hey, Legal Eagles it's time to think, like a corporate lawyer because Parler is suing Amazon for getting kicked off of the AWS platform but what was the basis for Amazon, to abruptly suspend the use of their web services by this ultra conservative Twitter clone? Did they break their agreement with Parler or even worse is there a conspiracy between Amazon and Twitter, to nuke the competition and what does this all have to do with the first amendment? And let's talk about the public version of why Parler got suspended? Amazon and Parler had a contract, detailing each party's rights and responsibilities, Parler was allowed to use Amazon as its web host but only if it agreed to follow some basic rules, including moderating content, so, why did Amazon suspend Parler's web services? Well, both companies agree, that Parler's lacks moderation policies, have been an ongoing source of conflict between these two companies, since at least November of last year, now, all internet hosting companies have rules of their own, about what content is and is not allowed, Amazon and Twitter seemed to have more stringent standards, about what content gets posted to their website platforms, Parler on the other hand takes a more complicated approach, to handling complaints, Parler relied on juries of its own users to determine, whether an offensive post broke its own rules, crowdsourcing adjudication of complaints, proved to be really slow, how slow? Well, at the time that Amazon booted Parler, there was a backlog of 26,000 complaints, that Parler juries had yet to adjudicate and on November 17th, 2020, seven weeks before the insurrectionist stormed the Capitol, Amazon emailed Parler to highlight some of the violent posts that were made on its services, one post derided Michelle Obama using racist words in response another user said, the only good Democrat is a dead one kill them all, a representative of Parler replied to the post, hateful as it is would not be deemed, a violation of our terms and service, Amazon essentially told Parler that this was a problem because Parler either did not care to or they simply did not have an effective way, to comply with the Amazon web service company's, terms of service including moderating violent rhetoric, the issue came to a head, after the deadly riots of the Capitol, when violent and threatening posts, continued to go unchecked by Parler, despite multiple parlays between Amazon and Parler, the violent posts increased with only half-hearted responses being provided by Parler to increase, their moderation efforts by using more volunteers and on January 9th, Parler was notified by Amazon Web Services, that at 11:59 PM on Sunday January 10th, they would stop providing web services for the website and app for a week Parler services were completely down with only recent signs of reappearing, now when Apple and Google removed the Parler app from their respective app stores, no one could download the app but the data was still there and it could be migrated elsewhere but with Amazon going down not only could Parler not obtain new users but the users they currently had, could no longer use Parler at all as a result, Parler filed a lawsuit in federal court on January 11th, seeking a temporary restraining order or TRO against Amazon in the hopes of either preventing Amazon from removing them from their web services or if that went through, putting them back on the AWS platform, so, let's dig into this lawsuit starting with the complaints that Parler filed against Amazon, it contains three causes of action or court thingies, that it says that Amazon has done wrong and what's as interesting as the three causes of action, that are included are the ones that are not included, there is nothing in this complaint, about the first amendment, why? Because that's not actually a thing as we've talked about many times on this channel, the first amendment doesn't apply to individual people, citizens or private companies it stops the government from restricting or mandating speech of its citizens, so as a result Parler doesn't include a cause of action, against Amazon under the first amendment because that's not really a thing but the first cause of action that Parler search, relates to the Sherman Antitrust Act and the Sherman Antitrust Act is just about as misunderstood as the first amendment but at least the Antitrust Act is a real legal thing that you are allowed to claim and Parler claims that Amazon Web Services is in cahoots with Twitter and conspired to de-platform Parler, to effectively remove them as a competitor, Parler claims this violate section one of the Sherman Antitrust Act, the federal statute which prohibits activities, that restrict interstate commerce and competition in the marketplace and here's the big thing that most people don't understand about the Sherman Antitrust Act and Antitrust laws in general which is that in the US, it's not illegal to be a really big company. - You see GE owns kitchen all of Colorado, which in turn owns JMI of Stanford, which is a majority shareholder in pokerfastlane.com, which recently acquired the Sheinhardt wig company, which owns NBC outright, NBC owns Winnipeg Iron works, which owns the AHP Chanagi Party Meats corporation of Pyongyang, North Korea. - It's not even illegal to be a monopoly or monopsony, that alone is not illegal but what is illegal under anti-trust laws is using your market powers to get an unfair advantage and the number one thing you can't do, the reason antitrust laws existed in the first place is conspire with a bunch of other companies, to root out the competition that's what a cartel is, it's a group of companies who conspire together for an unfair advantage and there are a bunch of other improper things, that are made illegal by the Sherman Antitrust Act but what's relevant here is section one and in order to prove a violation of section one of the Sherman Antitrust Act, basically requires proof of one, the existence of an actual conspiracy, two, intention on the part of those co-conspirators, to restrain trade and three actual injury to the competition and to support this claim, Parler alleges the following facts number one, Amazon Web Services and Twitter, signed a multi-year agreement for Twitter's use of Amazon Web Services in December of 2020 two on January 8th, Twitter banned president Trump, giving an opportunity for Parler, to gain a large number of disgruntled Twitter users, including Trump himself and three, less than 24 hours after Trump's Twitter ban, Amazon indefinitely banned Parler from using its web services, Amazon's response was that these allegations, don't meet the basic threshold requirement for a Sherman Antitrust Act, now, the Supreme court has long held a complaint, alleging a violation of the Sherman Antitrust Act, must provide "enough factual matter taken as true, "to suggest that an agreement was made", however, as Amazon pointed out in responding briefs, Parler does not even claim that Twitter and AWS, communicated about Parler much less formed an agreement and in fact Parler didn't present any evidence, direct or circumstantial, that shows that there was an actual conspiracy or intent on the part of Twitter and Amazon to restrain Parler's business, now, conspiracy doesn't require, an explicit contract between the two but Parler doesn't actually provide any evidence, any agreement or meeting of the minds, no matter how informal was actually made or that any communications took place whatsoever, moreover the Supreme court has explicitly held that if a business has an independent business justification for its conduct and there's no basis for rejecting that justification as legitimate explanation, the case will be dismissed for example, when Sprint was sued for allegedly colluding with other carriers to raise text message prices a court dismissed the claim, even though text messaging prices, went up throughout the entire telecommunications industry, Sprint had or claimed to have, an independent business justification for raising per message prices, the company wanted to push more subscribers, to purchase bundled calling and text plans, the court found that this was a legitimate justification and one that all the telecom companies shared, a desire to push people toward buying bundles services, there wasn't any proof that Sprint, even played a leadership role in increasing per message pricing nor was there enough evidence to show, that the telecom companies colluded amongst each other, to do everything in concert and here Parler alleges that Amazon's motivation for taking its action was political and that it had no legitimate business reasons for terminating the agreement and Parler goes back towards the conspiracy idea, asserting that Amazon wanted to benefit Twitter but Parler didn't make a single allegation, that conversations were held, between Twitter and Amazon regarding Parler, let alone they had some master plan in place, to jointly stifle Twitter's competition and even if Amazon had acted unilaterally for the benefit of Twitter, that still would not be enough for an antitrust action, again, without the conspiracy element being satisfied, an allegation of violating the Sherman Antitrust Act, falls on its face of course what was more plausible, between Amazon and Twitter and frankly Apple and Google at the same time is something referred to as conscious parallelism, conscious parallelism is the undisclosed imitation of another business action, this includes things like gas stations, across the street from each other, mimicking each other's prices or telecoms all raising the price of text messages, the same was likely the case with the wave of responses to Parler in the wake of the Capitol rights as one company realized, they needed to cut ties with this company, others without discussion or conspiracy, simply decided they needed to follow suit, to both protect their business interests and prevent future similar events, basically, everyone realized that Parler was toxic at exactly the same time because of everything that happened, now that takes us to the second cause of action for breach of contract and of course I saved the breach of contract alligation for the middle of the video because as we all know, contract law is the sexiest of all laws, that's right I'm bringing sexy contract, now the basic premise of this allegation is twofold, first that Amazon's suspension was really a termination for an alleged material breach and second any termination for cause, due to a purported material breach required a 30 day notice and precure period to fix the breaches, which was not provided, now, let's just start off by giving Parler, the benefit of a doubt here, that Amazon suspension was in fact a de facto termination, the clause of the agreement, that Parler hangs their argument on states, "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 the receipt of notice, "by the other party," now, unfortunately for Parler, you can't pick and choose what portion of the agreement, makes your argument seem more plausible, the customer agreement with Amazon, also contains a broader right to terminate an agreement, without requiring a 30 day cure period in that same section referenced by Parler and its complaint, the Amazon Web Services customer agreement, gives specific unilateral right to Amazon, "terminate this agreement immediately upon notice to you "for cause if we have the right to suspend under section six "and section six allows for suspension for any conduct, "by the customer or its user, "that's in breach of the agreement," so, the whole premise of Parler's argument is basically blown to pieces as referenced in their complaint, a breach of contract requires the contract imposes a duty, the duty is breached and the breach proximately causes damages to the claimant in the present instance though, the alleged duty a 30 day notice was a straw man of sorts, it didn't matter if Amazon gave them one day notice or no notice at all, per the terms of the agreement that Parler signed, Amazon had a separate unilateral right, to terminate the agreement immediately for conduct, that was in breach of the agreement no, at the same time, a lot of people have looked at this contract and said, gee, this contract seems super one-sided, it gives Amazon a ton of power and it seems like they can terminate anyone for almost any reason and people are right, that's how these contracts are often written and companies are considered, to be sophisticated business players and they can contract, to basically whatever they want as long as it's not against public policy and here Amazon had a contract, it's probably the same contract uses for everyone, that hosts web content with them and Parler had the option not to sign the contract but they chose to and so they're bound by it, just as much as Amazon is, Amazon just had the foresight, to write the contract that they wanted, so, let's talk about if Parler was in breach of the contract and really these kinds of fights are won and lost, based on what's in the contract not based on generally the action that is undertaken, after the contract is signed, so, you can probably guess how this is gonna turn out, so, we have to ask, did Parler breach the agreement? And the answer to that is probably simple, they hosted a ton of content that advocated violence, against a variety of individuals, along with other notable illegal content and they repeatedly failed to remove it but Parler's only mission, there was a backlog of 26,000 reports of content, that violated its community standards, yet remained on the website and as a result, individuals were able to insight and coordinate, various aspects of the January 6th attack on the US Capitol. - Boom, lawyer. - And what a lot of people think is worse is that following the horrific event, the violent and illegal content, actually seemed to increase on Parler with no sign of slowing down and section 4.2 makes clear, that the customer is responsible, "ensure that their content and their end users use "of their content or the service offerings, "will not violate any of the policies or any applicable law, "the customer is quote solely responsible "for the development content operation maintenance and use "of its content." And in addition section 4.5 of the customer agreement, states that if you become aware of any violation of your obligations under this agreement, caused by an end user, you will immediately suspend access to your content and the service offerings by such end user, so, what obligations may those be? Well, the agreement itself states, that the customer's responsible to immediately remove and suspend end users and content that poses security risk, to the service offerings or any third party. - Appendix three, soft limits. - With you. - And in addition as part of the agreement, Parler agreed to abide by Amazon's acceptance use policy, which prohibits certain content, including the content that "violates the rights of others "or that may be harmful to others," so the question is was there a breach of contract? Well, based on all of the available evidence, it certainly seems so, it's just that the breach of contract was not by Amazon, it was probably by Parler in that, they had recklessly violated the terms of the agreement, which resulted in a what seems like justifiable suspension of those services and finally, that takes us to the third claim in the complaint for intentional interference with prospective economic advantage, Parler's basis for this claim is that a termination of Parler's account with Amazon, will intentionally interfere with the contracts, Parler has with its present users as well as the users it was projected to gain, while their account was suspended, now, a successful claim under this tort, requires the establishment of several elements, one, the existence of a valid contractual relationship or business expectancy, two, the defendant's knowledge of that relationship, three, an intentional interference, inducing or causing a breach or termination of the relationship or expectancy, four, the defendant's interference with an improper purpose or by improper means and five, results in damage and here Parler argued that Amazon was well aware of their current growth and the potential for even more growth, highlighted by negotiations with Amazon, to increase server capacity and to capitalize on the speculation, that president Trump was going to join Parler, after being kicked off of Twitter and Parler argued, that this interference was intentional and improper and used Parler's purported breach as just a pretext, to ensure the Parler wouldn't gain steam, just at the time they were likely to experience, a significant amount of growth but yet again Parler leaves out the key facts, that are almost indisputable, that easily negate these allegations, especially as it pertains to the fourth element, interference for an improper purpose or improper means, interference claims cannot be made, where the alleged interference actions, were just simply exercising of a contractual right, that someone actually has it has to be improper and if you have the contractual right to do something, that can't give rise to the tort of intentional interference and since Amazon as we've already made abundantly clear, had the contractual right to terminate this contract, basically immediately an improper means can't be identified as far as an improper purpose, Amazon points out in it's reply that, it would require Amazon to have acted out of greed, retaliation or hostility, none of which was specifically alleged in Parler's complaint. Now, some of the facts go both ways in fact kicking Parler off of Amazon's platform, actually hurts Amazon as well because they'd be foregoing the revenue from Parler and there are other things that go both ways as well, like the fact that Amazon was willing to assist them, by helping Parler migrate their services to a different provider and didn't hold back the data, that was presumably rightfully Parler's in a letter notifying Parler of their suspension, Amazon stated "we will ensure that all of your data "is preserved for you to migrate to your own servers "and we'll work with you as best we can, "to help your migration." Now, those are Parler's three claims but there's another aspect of this, that I think Parler's mentioned at this point, which is that Amazon has certain affirmative defenses, just because people make accusations against you, doesn't mean that you can't use, what's called an affirmative defense, to throw out those claims, even if those claims happen to be true and with so many things these days this involves section 230 of the communications decency act and here much to the ire of Trump supporters everywhere, Amazon also argued that in addition to all of the other reasons that they provided, Parler's claims just fail on their own rights, Amazon is also protected by section 230, this section explicitly restricts liability, against online service providers in certain instances, when they block perceived harmful content, section 230 (c)(2)a specifically states that, "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 "or user considers to be obscene, lewd, lascivious, filthy, "excessively violent, harassing or otherwise objectionable, "whether or not such material is constitutionally protected" this good Samaritan rule then provides an additional layer of protection for Amazon as a computer service company, tasked with the tremendous responsibility of trying to provide a platform for informational resource and political discourse, while being cognizant of the need to protect individuals, against harmfulness information and illegal activity and as we've talked about on this channel before and we'll probably talk about many times in the future, section 230 was a response to the early days of the internet where if a website did any kind of moderation whatsoever, they were deemed to be constructively knowledgeable about, all of the illegal stuff that was on their website and so it was a way to allow websites to do some moderation, without being liable for everything that's on their website, this applies to Amazon, it applies to YouTube, it applies to anyone that even has a blog, that has comments on it and if you didn't have this kind of protection, odds are they wouldn't host anything on it because they'd be too worried about, all of the illegal stuff that's hosted on there, so, it's either an all or nothing proposition, where there would be basically a hundred percent moderation and nothing even remotely controversial or zero moderation at all and it would just be a complete Wild West. So as you probably know the way Parler started this lawsuit was a request for a TRO or a temporary restraining order, it's an emergency motion to get someone to not do something, it started as a way to try and prevent Amazon from kicking Parler off its platform and then it was basically an order to demand, that Amazon put the app back on its platform and you can imagine under some of these circumstances, where a TRO might be granted because kicking an app off of a platform, might give rise to the kind of irreparable damages, that a TRO is meant to solve it's a very temporary thing, so, you can get to the merits of the litigation, without complete destruction that cannot be undone but to get a temporary restraining order, a plaintiff would have to establish number one, that it's likely to succeed on the merits and as we've just talked about, that's definitely not going to happen, all three of its claims pretty much fail pretty easily, number two, that you have to show, that you're likely to suffer irreparable harm in the absence of preliminary relief, which in this circumstance probably exists, having the app completely down, the website completely destroyed and needing to be rewritten for some other platform, yeah, that could be irreparable harm, number three, the balance of the equities tips in its favor, which definitely doesn't exist here because you can have all the irreparable damage in the world but if you're not going to succeed on the merits, you're not entitled to any relief if you're not going to succeed and finally, the fourth element is an injunction would be in the public interest, which also for basically the same reasons, doesn't really exist here, now, that being said, this is not the end of the lawsuit, contrary to a lot of media reporting about this lawsuit, it's not over by any stretch of the imagination in fact, this is really just the end of the first inning, Parler took a big swing they whiffed, the court didn't grant the emergency motions for a temporary restraining order or the preliminary injunction but the lawsuit still exists and the court is still going to have to adjudicate, these claims on the merit of the claims and while some preliminary evidence was provided to the court, we haven't gotten to the discovery portion, where they can get a whole bunch of more evidence, so, this lawsuit isn't going anywhere, generally if you lose the temporary restraining order and the court says you're unlikely to win on the merits, that's a really, really bad sign for the plaintiff like Parler but they still have the option of pressing forward, except that's not what happened at all because I am Devin from the future because the day that I was going to release this video, Parler decided to go ahead and voluntarily dismiss their own case, so, they dismissed their own case from the federal district court in which they filed and this is one of those cases where it's important, to recognize the difference between, a dismissal with prejudice and without prejudice, we talk about that a lot on this channel because that is a common misconception if you get dismissed with prejudice that means, you can never refile your case is done it's over, the only thing you can do is appeal but when you dismiss without prejudice, you can refile your case either in the same court or potentially in a different court if you have jurisdiction and that's exactly what Parler decided to do here, having been trounced in federal court, Parler decided to refile their case in Washington state court and that's not an entirely unusual thing to do often, it's because you got smacked around in a federal court, that you decide to go to a different court, there are times when you can do this, there are times when you can't do this, I'm not going to go into those at the moment and here Parler has slightly retooled their case in potentially a more favorable forum, they've added a few new claims, the first of which is a Washington state, consumer protection act claim now, Washington state along with a lot of different states has a sort of general catch-all statute, that doesn't allow businesses to engage in, what are considered unfair business practices but that requires an underlying predicate, unfair business practice and they're gonna have an uphill climb, to be able to prove that Amazon engaged in some sort of unfair business practice against Parler, into it Parler claims that Amazon engaged in unfair business practices along the lines of forcing them to sign a contract of adhesion and actually hacking into their information or at least leaving open the possibility of getting hacked by other people with respect to the contract of adhesion, that's probably legally going to fail, lots of times contracts of adhesion meaning, that you don't have any say in being able to change the contract, well, those are most of the contracts, that people engage in these days, so, the fact that it's a contract of adhesion alone, doesn't mean it's against public policy and with respect to the hacking claim, that may be legally sufficient and that'll be a factual dispute, that the parties will just have to litigate and furthermore Parler now claims a defamation claim, against Amazon asserting that Amazon defamed Parler, by alleging that Parler was unwilling, to moderate the content on its own sites and then Parler reiterates, a lot of the same breach of contract claims, that were at issue in the federal case, though in the federal case they were never adjudicated, so, it makes sense to reassert them here as we discussed in this video already, the evidence for these breach of contract claims are pretty thin and again it's going to be an appeal battle but some of these claims may be enough, to survive a motion to dismiss and in which case, the parties will probably engage in some discovery, that may get expensive but again, this is probably not the end of the Parler case, it's entirely possible that some of their claims, will survive motions to dismiss if they're able, to get away with changing the venue like this but whether this Parler suit is in federal court or Washington state court, the suit probably isn't going to go away anytime soon, just like working from home and video conferencing is going to last forever it seems like, which is why it's more important than ever, to wear comfortable clothes all day long and you might've noticed, I started a series of daily video shorts called Eagle Briefs and inevitably people started demanding actual Eagle briefs, so, here you go Eagle briefs from Mack Weldon because they are known for their insanely comfortable boxer briefs, including their new stealth boxer briefs, that is great for everything from working out, to hanging out and feels like absolutely nothing at all and if you're watching this channel you're an adult and you probably deserve to have nice boxer briefs and I can tell you it makes a world of difference, I also love their radius pants, which are 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Channel: LegalEagle
Views: 600,667
Rating: 4.8942857 out of 5
Keywords: Legaleagle, legal eagle, breaking news, case, congress, court case, crime, guilty, jury, latest news, news, not guilty, political, politics, politics news, scotus, supreme court, the trial, trial, Verdict, copyright, law advice, legal analysis, lawyer, attorney, Real lawyer, Real law review
Id: viFjH6rr9xY
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Length: 26min 53sec (1613 seconds)
Published: Sat Mar 06 2021
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