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It seemed apparent right when the case was filed that Parler didn't have a leg to stand on. It was partly a play for publicity that plays well into their custo

by snoshy 6y ago

It seemed apparent right when the case was filed that Parler didn't have a leg to stand on. It was partly a play for publicity that plays well into their customer demographics, and a dying gasp of trying to seek some kind of injunctive help from the administration, no matter how impossible it seemed. Judging by how weak their infrastructure was in the first place, getting any kind of resilient hosting in place after all the industry behemoths turned their backs on Parler was clear not a viable option. If you can't get your site to work well with all the best tools, you really have little hope in the wild west.

mercurialshark 6y ago
Tech attorney here (with no relation to this specific matter). I wouldn't say they don't have a leg to stand on. I think it will prove to be very interesting.
- snoshy 6y ago
  I'm curious... how so?
- tptacek 6y ago
  Say more!
- acdha 6y ago
  Can you explain?
  - mercurialshark 6y ago
    Sure, I'll circle back with a longer form response in a few minutes. In the meantime, I find it interesting that people think down voting my comment will intimidate me into changing the analysis. That's not how legal judgment works. That's not how anything works...
    - Someone1234 6y ago
      Maybe they, like me, read the court's frankly damning opinion and didn't find that your fact-less argument from authority contributed to the discussion. If you wanted to write a "long form" (?) reply then you could have done so. In the meantime the hand wave above has to stand on its own merits; or more specifically fall on its lack thereof.
      - mercurialshark 6y ago
        I don't think responding in less than five minutes was unreasonable. It's also not legal advice, simply my personal opinion on some of the numerous issues that are likely to be litigated. I also think this entire thread will be worth revisiting upon appeal.
        Someone1234 6y ago
        > I don't think responding in less than five minutes was unreasonable. This only further highlights how unnecessary the original low value reply was. Instead of responding with something of substance that took five additional minutes to write, you told us your qualifications instead of your views. > I also think this entire thread will be worth revisiting upon appeal. I don't really see why. None of the reasons you got downvoted have anything to do with this specific case (low effort comments, arguments to authority, complaining about the response to the forementioned, and then arguments that are poorly explored/rely on erroneous facts). Even if Parler ultimately won via an entirely new theory of US law as you have argued, it wouldn't change that your comments here today could have been better and would have been received better if they were.
        jcranmer 6y ago
        I don't see how this case will go anywhere on appeal: the facts that are actually alleged in the complaint are simply too thread-bare to support any matter of law that could be appealed, and Parler hasn't claimed anything that would allow your legal theory to apply to this case.
    - deleted 6y ago
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- salawat 6y ago
  Please! I'm always interested by the vagueries of contract law, if it isn't too much trouble.
- jcranmer 6y ago
  Not an attorney, but I've read all the briefs in the case (you can too at https://www.courtlistener.com/docket/29095511/parler-llc-v-amazon-web-services-inc/ https://www.courtlistener.com/docket/29095511/parler-llc-v-a...). Count 1 (antitrust) fails because you need to actually allege a conspiracy, not just say "Twitter is also a customer of AWS!" I mean, I immediately realized it was deficient on their initial brief, because they didn't even back up enough evidence to satisfy their own citations, let alone explain how they can pass the big citation they conveniently omit (Twombly). Counts 2 and 3 fail because the gravamen is that AWS violated its own contract by not giving 30 days' notice. Ignoring the very next paragraph that says AWS can terminate with no notice. Their own response to that point in the reply brief was pitiful. Actually, their response was so pitiful they tried a second reply brief (that's the "supplemental authority" brief) where they instead changed their argument to "this is our reading of the contract, and you have to endorse it because it's a contract of adhesion." Which instead comes across as "we totally missed that part in the contract, and now we're trying to legal fu our way out of not reading a contract." Changing your argument on the fly doesn't tend to go very well in the courts. The quality of their legal briefs is not impressive, and when you're going up a large corporation with deep pockets and competent legal attorneys to defend themselves, you're going to have a very rough time of it.
  - threatofrain 6y ago
    Also, Twitter is a future customer of AWS. They’ve not yet moved.
  - alexeldeib 6y ago
    > Ignoring the very next paragraph that says AWS can terminate with no notice. Their own response to that point in the reply brief was pitiful. This is the part I don't understand. Did they really think no one would notice it?
    - jcranmer 6y ago
      My working theory is that they didn't notice it until AWS pointed it out in the reply brief. Their previous attorney apparently dropped them as a client sometime around the 8th, and I suspect this lawsuit was put together in extreme rush on the 10th to keep Parler running. It absolutely wouldn't surprise me if neither Parler nor the attorney actually reviewed the agreement in enough detail to notice that AWS had the right to terminate immediately. Admittedly, this theory doesn't explain how the antitrust count gets added.
- mercurialshark 6y ago
  Without addressing the specifics of the TRO (which is simply an early stage request for injunctive relief, asking the court to compel AWS to reinstate services pending litigation): Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state. Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” owned by a private entity. Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning a digit company owned town. If data storage and/or social media can be viewed as critical digital infrastructure and a private organization provides those services, an argument can and will likely be made that the services are tantamount to a digital company owned town. As Justice Ginsburg said during oral argument regarding private digital networks, “the point is that these people are being cut off from a very large part of the marketplace of ideas. And the First Amendment includes not only the right to speak, but the right to receive information.” And as Justice Kagan stated during Packinghan oral argument, "whether it’s political community, whether it’s religious community... these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights.” Moreover, AWS's behavior may be viewed as an antitrust issue, acting in conjunction with a cartel. A party does not need to have majority market share to function in coordination with other dominate players in order to form a cartel that can manipulate the market. Also, they may or may not have provided sufficient notice (a contract issue). Either way, it's definitely relevant to industry and likely to be litigated on appeal following the trial court's ruling (whatever it is).
  - Someone1234 6y ago
    > Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state. Amazon isn't the state. > Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” owned by a private entity. Which doesn't apply here, as Amazon isn't a company town/acting in a quasi-governmental capacity. > AWS's behavior may be viewed as an antitrust issue, acting in conjunction with a cartel. The court ruled on this, and pointed out that the accusations were factually erroneous. > Moreover, they may or may not have provided sufficient notice (a contract issue). The court ruled on this, and sided with Amazon (zero notice in this circumstance). If anything Amazon giving them 24 hours was above what the contract required. I suggest reading the court's opinion before replying, since it undercuts many/most of the points you've tried to make.
- freeone3000 6y ago
  It absolutely is going to be interesting, but maybe not in a way that's successful for them. Filing a notice of authority in lieu of a sur-reply is bush-league argumentation.
- godmode2019 6y ago
  +1. There is no reason to downvote a professional opinion. This is not reddit.
michaelmior 6y ago
I know effectively zero about Parler's infrastructure, but I would say it's not that uncommon to build a product tied specifically to AWS. What really surprised me though is that it took them days to get even a static homepage up.
- duskwuff 6y ago
  My understanding is that Parler actively avoided making technical decisions which would tie them to AWS. Their problems coming back online have primarily been because most major hosting providers have refused to take their business (and possibly also as a result of their ridiculous hardware requirements, cf. https://twitter.com/th3j35t3r/status/1350612426115452935 https://twitter.com/th3j35t3r/status/1350612426115452935).
  - WJW 6y ago
    Those are... rather onerous HW requirements. Do you really need 20k cores to run a small-medium size social network? Asking because I have personal running a 40-50 million monthly users file sharing site on less than a tenth of that and most of it was done with Rails (itself not the most minimalist of frameworks).
    - snoshy 6y ago
      Yeah, those requirements are quite steep for what Parler does. That being said, it is actually incredibly hard to scale any product that sees a sudden massive influx of users, media attention, and conflict like this. I mean this from a purely technical standpoint. If your customer base is doubling every few weeks, that's simply not enough time to hire more engineers, onboard them, and get their resources focused on optimizing the stack to improve efficiency. It's also way more realistic to scale up your infrastructure in the short run until you know you've stabilized at a point where you can purchase and operate dedicated hardware to offset the steep margins cloud providers charge. On top of it all, their product itself seems off-putting to a large portion of tech workers, which would make hiring talented individuals even harder.
gowld 6y ago
Surely there is a Russian cloud provider? Parler is a Russian company so it should be easy to sign up with local providers.
- repeatafterme1 6y ago
  Take a deep breath, and repeat after me: "I am ok with others cancelling companies/people I don't agree with politically". Deep breath out. Ahhh, that feels much better! PD. Just don't you dare cancel those I agree with!

by snoshy 6y ago

mercurialshark 6y ago

Tech attorney here (with no relation to this specific matter). I wouldn't say they don't have a leg to stand on. I think it will prove to be very interesting.

snoshy 6y ago
I'm curious... how so?
tptacek 6y ago
Say more!
acdha 6y ago
Can you explain?
- mercurialshark 6y ago
  Sure, I'll circle back with a longer form response in a few minutes. In the meantime, I find it interesting that people think down voting my comment will intimidate me into changing the analysis. That's not how legal judgment works. That's not how anything works...
  - Someone1234 6y ago
    Maybe they, like me, read the court's frankly damning opinion and didn't find that your fact-less argument from authority contributed to the discussion. If you wanted to write a "long form" (?) reply then you could have done so. In the meantime the hand wave above has to stand on its own merits; or more specifically fall on its lack thereof.
    - mercurialshark 6y ago
      I don't think responding in less than five minutes was unreasonable. It's also not legal advice, simply my personal opinion on some of the numerous issues that are likely to be litigated. I also think this entire thread will be worth revisiting upon appeal.
      - Someone1234 6y ago
        > I don't think responding in less than five minutes was unreasonable. This only further highlights how unnecessary the original low value reply was. Instead of responding with something of substance that took five additional minutes to write, you told us your qualifications instead of your views. > I also think this entire thread will be worth revisiting upon appeal. I don't really see why. None of the reasons you got downvoted have anything to do with this specific case (low effort comments, arguments to authority, complaining about the response to the forementioned, and then arguments that are poorly explored/rely on erroneous facts). Even if Parler ultimately won via an entirely new theory of US law as you have argued, it wouldn't change that your comments here today could have been better and would have been received better if they were.
      - jcranmer 6y ago
        I don't see how this case will go anywhere on appeal: the facts that are actually alleged in the complaint are simply too thread-bare to support any matter of law that could be appealed, and Parler hasn't claimed anything that would allow your legal theory to apply to this case.
  - deleted 6y ago
    [deleted]
- deleted 6y ago
  [deleted]
salawat 6y ago
Please! I'm always interested by the vagueries of contract law, if it isn't too much trouble.
jcranmer 6y ago
Not an attorney, but I've read all the briefs in the case (you can too at https://www.courtlistener.com/docket/29095511/parler-llc-v-amazon-web-services-inc/ https://www.courtlistener.com/docket/29095511/parler-llc-v-a...). Count 1 (antitrust) fails because you need to actually allege a conspiracy, not just say "Twitter is also a customer of AWS!" I mean, I immediately realized it was deficient on their initial brief, because they didn't even back up enough evidence to satisfy their own citations, let alone explain how they can pass the big citation they conveniently omit (Twombly). Counts 2 and 3 fail because the gravamen is that AWS violated its own contract by not giving 30 days' notice. Ignoring the very next paragraph that says AWS can terminate with no notice. Their own response to that point in the reply brief was pitiful. Actually, their response was so pitiful they tried a second reply brief (that's the "supplemental authority" brief) where they instead changed their argument to "this is our reading of the contract, and you have to endorse it because it's a contract of adhesion." Which instead comes across as "we totally missed that part in the contract, and now we're trying to legal fu our way out of not reading a contract." Changing your argument on the fly doesn't tend to go very well in the courts. The quality of their legal briefs is not impressive, and when you're going up a large corporation with deep pockets and competent legal attorneys to defend themselves, you're going to have a very rough time of it.
- threatofrain 6y ago
  Also, Twitter is a future customer of AWS. They’ve not yet moved.
- alexeldeib 6y ago
  > Ignoring the very next paragraph that says AWS can terminate with no notice. Their own response to that point in the reply brief was pitiful. This is the part I don't understand. Did they really think no one would notice it?
  - jcranmer 6y ago
    My working theory is that they didn't notice it until AWS pointed it out in the reply brief. Their previous attorney apparently dropped them as a client sometime around the 8th, and I suspect this lawsuit was put together in extreme rush on the 10th to keep Parler running. It absolutely wouldn't surprise me if neither Parler nor the attorney actually reviewed the agreement in enough detail to notice that AWS had the right to terminate immediately. Admittedly, this theory doesn't explain how the antitrust count gets added.
mercurialshark 6y ago
Without addressing the specifics of the TRO (which is simply an early stage request for injunctive relief, asking the court to compel AWS to reinstate services pending litigation): Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state. Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” owned by a private entity. Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning a digit company owned town. If data storage and/or social media can be viewed as critical digital infrastructure and a private organization provides those services, an argument can and will likely be made that the services are tantamount to a digital company owned town. As Justice Ginsburg said during oral argument regarding private digital networks, “the point is that these people are being cut off from a very large part of the marketplace of ideas. And the First Amendment includes not only the right to speak, but the right to receive information.” And as Justice Kagan stated during Packinghan oral argument, "whether it’s political community, whether it’s religious community... these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights.” Moreover, AWS's behavior may be viewed as an antitrust issue, acting in conjunction with a cartel. A party does not need to have majority market share to function in coordination with other dominate players in order to form a cartel that can manipulate the market. Also, they may or may not have provided sufficient notice (a contract issue). Either way, it's definitely relevant to industry and likely to be litigated on appeal following the trial court's ruling (whatever it is).
- Someone1234 6y ago
  > Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state. Amazon isn't the state. > Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” owned by a private entity. Which doesn't apply here, as Amazon isn't a company town/acting in a quasi-governmental capacity. > AWS's behavior may be viewed as an antitrust issue, acting in conjunction with a cartel. The court ruled on this, and pointed out that the accusations were factually erroneous. > Moreover, they may or may not have provided sufficient notice (a contract issue). The court ruled on this, and sided with Amazon (zero notice in this circumstance). If anything Amazon giving them 24 hours was above what the contract required. I suggest reading the court's opinion before replying, since it undercuts many/most of the points you've tried to make.
freeone3000 6y ago
It absolutely is going to be interesting, but maybe not in a way that's successful for them. Filing a notice of authority in lieu of a sur-reply is bush-league argumentation.
godmode2019 6y ago
+1. There is no reason to downvote a professional opinion. This is not reddit.

michaelmior 6y ago

I know effectively zero about Parler's infrastructure, but I would say it's not that uncommon to build a product tied specifically to AWS. What really surprised me though is that it took them days to get even a static homepage up.

duskwuff 6y ago
My understanding is that Parler actively avoided making technical decisions which would tie them to AWS. Their problems coming back online have primarily been because most major hosting providers have refused to take their business (and possibly also as a result of their ridiculous hardware requirements, cf. https://twitter.com/th3j35t3r/status/1350612426115452935 https://twitter.com/th3j35t3r/status/1350612426115452935).
- WJW 6y ago
  Those are... rather onerous HW requirements. Do you really need 20k cores to run a small-medium size social network? Asking because I have personal running a 40-50 million monthly users file sharing site on less than a tenth of that and most of it was done with Rails (itself not the most minimalist of frameworks).
  - snoshy 6y ago
    Yeah, those requirements are quite steep for what Parler does. That being said, it is actually incredibly hard to scale any product that sees a sudden massive influx of users, media attention, and conflict like this. I mean this from a purely technical standpoint. If your customer base is doubling every few weeks, that's simply not enough time to hire more engineers, onboard them, and get their resources focused on optimizing the stack to improve efficiency. It's also way more realistic to scale up your infrastructure in the short run until you know you've stabilized at a point where you can purchase and operate dedicated hardware to offset the steep margins cloud providers charge. On top of it all, their product itself seems off-putting to a large portion of tech workers, which would make hiring talented individuals even harder.

gowld 6y ago

Surely there is a Russian cloud provider? Parler is a Russian company so it should be easy to sign up with local providers.

repeatafterme1 6y ago
Take a deep breath, and repeat after me: "I am ok with others cancelling companies/people I don't agree with politically". Deep breath out. Ahhh, that feels much better! PD. Just don't you dare cancel those I agree with!