Posts by Jef Pearlman

DOJ on Amended Google Books Settlement: Better, but Still Opposed

Sherwin posted last week about the amended Google Books settlement and our amicus brief expressing our opposition to the settlement as written and our concern that it would lead to a monopoly on providing access to orphan works. The DOJ's Antitrust Divison has once again weighed in on the settlment (their previous brief is here, with our analysis here). Their conclusions appear to be largely the same as ours: "Although the United States believes the parties have approached this effort in good faith and the [Amended Settlement Agreement (ASA)] is more circumscribed in its sweep than the original Proposed Settlement, the ASA suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation."

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DECE and the War on Ownership

In the media world, there’s an ongoing war about what it means to “own” a copy of something. Most of us are used to the world of paper books and plastic CDs, where the media you buy is yours to do what you like with, be that play it in your living room, lend it to a friend, or (as a practical matter) rip it to your computer for your own use on other devices or locations. But in the world of DRM, the copyright owner gets to decide when, if, and for how long you get to do those things. The latest salvo in the battle to get consumers to accept DRM is DECE: the “Digital Entertainment Content Ecosystem.” DECE appears to be an attempt to make DRM interoperate better across different devices, services, and content sources. Is this a good thing – or at least a less bad thing – for content users? I’m not holding my breath…

**Ownership vs.

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Live Blogging from World’s Fair Use Day: Panel 4 - Speed Fair(Us)e

[This post was written at a live event.]

Welcome to the third session:

Chris Burke, Terri Bays, Lincoln Bandlow, Mark Dery, and DJ Earworm with moderator Orlando Bagwell.

OB: This is gonna move fast!

LB: One comment on the last panel and statutory damages. Statory damages is a range of money. We should have a legislative fix, where if the defendant brings a good faith fair use defense, statutory damages shall be $250. Second legislative fix: If you prevail on fair use, you shall be awarded attorneys fees. I'm a lawyer, that's for you makers. I'm goig to show you a clip from a documentary about roadside eateries. Clip about Bob's Big Boy. Interview has a picture in the background by artist who had been commissioned to paint it. Sued for copyright infringement. LB: brought fair use defense and case immediately thrown out -- documentary film, and should be able to present the wrold as it is.

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Live Blogging from World’s Fair Use Day: Panel 3 - Technology Unbound: Fair Use for Innovation

[This post was written at a live event.]

Gigi does brief introductions of the panelists: Rakesh Agrawal, Dan Reetz, Andrew McLaughlin, and Michael Robertson.

GBS: Intro question. What has been your biggest fair use challenge? And for AM, what will be the administration's approach to fair use?

RA: Our product (Snapstream) is a cross between a DVR and a search engine -- search inside TV shows and do things with what you find. Slide shows you can search, find something in a show, and it will take you to the point of the show that has the reference in question. Typically our customers are the ones making fair uses of what they find. Gov't organizations use it for ego searches ("what's being said about us"?) Used for research for journalism schools. Used by TV shows like The Soup and the Daily Show for source clips. Demo video from the Soup about Twitter: Great montage of all the shows talking about Twitter that week. ("It's the digital Macarena!") Just one example.

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Live Blogging from World’s Fair Use Day: Lunchtime Fair Use Q&A

[This post was written at a live event.]

Up during lunch we have Anthony Falzone and Peter Jaszi answering question about copyright, fair use, and remixing.

AF: Started the Fair Use Project 3 years ago to clarify/expand the boundaries of Fair Use, primarily through litigation but also through authors. Have represented numerous fair users. Formerly represented Shepard Fairey, but to be clear: he still believes completely in the merits of Shepard's case.

PJ: Lots of work on fair use at the Samuelson. Recently working with Pat with communities to develop codes of best practices for fair use which are having impact within the field. People who use the works are reclaiming the rights they had been given 170 years ago by the courts. Thanks to PK and the practitioners who are exercising the rights the (c) act gives them. Thanks also to generations of lawyers/clients who have done so much to make fair use real: EFF and Fair Use Project, but also individuals and their lawyers.

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Selectable Output Control: Why?!

You may remember that at the end of last year, the FCC declined to give a small group of Hollywood studios the ability to turn off the video inputs that over 20 million high definition televisions rely on. Almost a year later, the MPAA is back, threatening not make content available, responding to year-old arguments while trying to pretend 2009 never happened, and making a lot of noise without saying anything new. So we're back, too, with a letter detailing why the MPAA's petition to use Selectable Output Control (SOC) at worst imposes millions of dollars of costs on consumers and at best leaves us scratching our heads asking why the Commission would even consider it.

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DOJ Weighs in on Google Book Search Settlement

On Friday, the Department of Justice Antitrust Division submitted a "Statement of Interest of the United States of America" to the court about the proposed Google Book Search settlement. Its conclusion: "the Proposed Settlement does not meet the legal standards this Court must apply." It seems the DOJ shares both our hopes for and appreciation of the Google Book Search service and many of the concerns about the settlement that we expressed in our amicus brief filed two weeks ago.

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Public Knowledge Files on the Google Book Search Settlement

This Tuesday, Public Knowledge filed a brief asking the court not to approve the proposed Google Book Search settlement as it is currently constructed. The proposed settlement raises significant antitrust and class action procedural concerns. In plain English, these concerns are that the settlement represents an attempt to license a lot of books belonging to people who are unable to protest, set up a system to pay other people for the use of those books, and give a single party the exclusive right to use many of those books indefinitely. Read on for some more detail about our concerns.

But first, let’s be clear: We want online access to all books for everyone. We want a world without orphan works, where one can either find a copyright’s owner and seek to license use of their work, or else that work is available for use by all. We want all books to be made accessible so that the blind can read everything the sighted can. We are happy with Google’s current lawful scanning, indexing, and excerpting of all books, and the ability it provides to locate works which would otherwise lay dormant. We would like to find a way that anyone who wants to can offer the public even more complete access. And we have no doubt that whatever happens, Google will continue to offer searches of all books, offer full, accessible access to the books it has licensed, and find ways to locate as many rightsholders as possible to obtain more licenses.

But access through a single party is not true access: What we do not want is for books to be made available only through a single company that has, through judicial gymnastics, obtained the only possible license to those works. What we don’t want is a system where the books of absent authors are being sold and the unclaimed proceeds are going to those who should be finding those authors in the first place.

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PK & EFF: Keep Copyright Owners from Controlling What I Do With My Property

Perhaps you remember Rashmi’s post about how the Ninth Circuit’s decision in Omega v. Costco opened the door to copyright owners taking control of the import markets for all kind of products, merely by slapping a copyrighted logo onto everything they make. Wednesday, PK and EFF filed a brief asking the Supreme Court to take the case, explaining that the consequences of the Ninth Circuit’s decision go even further than controlling imports. The short version is that under the Ninth Circuit’s interpretation, any product which has a label or logo manufactured abroad cannot be imported into the U.S., resold, or given away by a lawful purchaser without permission of the owner of the label’s copyright. Sound like a big deal? It is.

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Christine Varney: “It is time for the antitrust division to step up its efforts.”

Christine Varney, Obama’s recently-confirmed Assistant Attorney General for Antitrust at the Department of Justice, spoke yesterday at the Center for American Progress. Her speech gave us the first direct view into the direction Varney plans to take the Antitrust Division during her tenure. Varney’s thoughts, in sum: “In the last decade, the division has not been, in my opinion, as active as it could have been. It is time for the Antitrust Division to step up its efforts.”

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Public Knowledge and the Google Book Search Settlement

This week, the Honorable Judge Chin of the Southern District of New York granted us permission to file an amicus brief regarding the proposed Google Book Search settlement. Since the proposal’s announcement back in October, we’ve been poring over the 320 pages of text and attachments, meeting with parties on all sides of the issue, and weighing the upsides and the downsides of the deal. In the end, we have some serious concerns about aspects of the proposed settlement, and plan to bring those concerns to the attention of the Court before Judge Chin makes a final ruling. On Wednesday, he granted a 4-month extension for those who wish to file, so there is still much to be done, but we thought we’d give you a preview of the issues we plan to raise.

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MixApp: Group Listening in Your Living Room—On Your Desktop

If you were to take your living room, complete with stereo and a few friends in lounge chairs, and shrink it down enough to squeeze it into the Internet’s tubes, you’d have MixApp. MixApp – currently in an invite-only beta – allows groups of friends to create virtual rooms where they can chat while they listen to a shared playlist. The music can come from multiple users’ libraries, and can be rearranged by anyone in the room. Everyone in the room hears the same music at the same time. And while right now, it’s Mac-only, PC and iPhone versions are on the way.

Sound familiar? It should. It’s a lot like what happens when you invite some friends over and listen to CDs at your house. The primary difference is that your friends can be in the room or across the country. And for groups of friends who share music as a common interest, MixApp provides an incredible opportunity to connect and share where distance was once an insurmountable barrier. So where's the catch?

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‘Tis the Season Part II: Broadband Stimulus

Yesterday, I had the opportunity to meet with representatives of the Presidental Transition’s FCC review team and a few like-minded public interest organizations to talk about what a broadband stimulus package should look like. The main question: if Congress allocates some stimulus money for broadband-related purposes, what would we propose to do with it and what would those proposals accomplish for the economy and our national broadband infrastructure? While a number of great ideas were discussed which would stimulate investment and create jobs, there were some underlying themes which we think any plan should embody: infrastructure improvement, competition, and openness.

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Text Messaging Update: Short Codes and Phone Numbers

Today, we filed a letter with the FCC detailing why text messaging – including those 5- and 6- digit phone numbers called “short codes” – is a Title II common carrier service. This is important because without such a classification, wireless carriers could decide who says what to whom through text messages, as well as who is allowed to use short codes to address those messages. The letter is a follow-up to our text messaging petition, in which we asked the Commission to step up and make sure that carriers can’t use their ownership of the phone system’s on-ramps to block speech they don’t like or services which compete with them as they have before and are doing today.

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How To (Try To) Destroy the Online Secondary Market In One Easy Lawsuit

Remember that case where Tiffany sued eBay, saying that eBay should be liable for trademark infringement whenever one of their users posts a counterfeit item on their site? Back in July, the trial court judge ruled for eBay, slapping down Tiffany’s attempt to change the law so that eBay had to police every one of the 6 million items which are posted daily to make sure no trademarks were infringed. On Tuesday, we joined EFF and Public Citizen in filing a “friend of the court” brief with the Court of Appeals asking them to affirm the lower court’s decision and continue to protect the online marketplace from unjustified, crippling liability and overbroad policing requirements. For a little more detail on the legal arguments we make, read on.

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Do 20 million HDTVs matter?

Remember Selectable Output Control? It's the issue where the MPAA petitioned the FCC for the right to turn off any and all of the outputs on your cable box -- especially those pesky high definition analog connections -- if they move up the Video-on-Demand (VoD) release date on movies. In our original filing opposing the petition, we cited an article which said that 11 million HDTVs currently in use have only analog inputs, and would surely be cut off by the MPAA. News Corp shot back, saying that according to the Consumer Electronics Association (CEA), there were only 4 million such TVs out there. Who's right? Apparently, neither of us. Yesterday, CEA filed a letter with the FCC saying that there are over 20 million HDTVs currently in use which only have analog inputs, and if the petition were granted, would "no longer function as they did when originally purchased by U.S. consumers."

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Google Book Search and Orphan Works

By now, you’ve probably heard about the proposed settlement in the Google Book Search lawsuit. By the terms of the deal (assuming it is approved by the court), Google gets the risk-free ability to scan, index, and in many cases, post portions of pretty much every book which has gone into U.S. Copyright by the end of the year. Clearly this is a win for getting the public access to large swaths of books which would otherwise been effectively lost to them. But is it really a win in the fight to make orphan works usable, as Professor Lawrence Lessig suggests? While it’s a step in the right direction (and has the benefits described), it’s not a very big one, nor is it enough to obviate the need for Congress to step in.

The short version of why is that while it helps Google index orphaned books and helps the public get access to them, it does nothing for non-book works or for anyone other than Google who wants to make use of orphaned books. The long version is detailed below.

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Dont Believe the Hype: Carriers Hide Behind Spam to Protect their Corporate Values From Your Speech

Remember how we filed a petition to the Federal Communications Commission (FCC) asking them to make sure that carriers are nondiscriminatory when it comes to text messages? While we haven’t posted about it much lately, work on the issue has been chugging quietly along behind the scenes. Today, all of the parties of the original petition filed a follow-up letter at the Commission dealing with some of the arguments which have been raised, primarily by Verizon Wireless and CTIA (the industry group for wireless carriers). The short version is that carriers claim they won’t be able to stop spam if they can’t also pick and choose who is allowed to text with you. Needless to say, we disagree.

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OneWeekTill OneWebDay: Get Involved

Raise your hand if you like the Internet. Now, raise your hand if you like freedom. And once more for democracy. Okay, put your hands down – I can’t actually see you. If you raised your hand (and I suspect a lot of you did, at least mentally) then I urge you to check out what’s going on for the Third Annual OneWebDay on Monday, September 22, 2008. OneWebDay is a day focused on protecting the Internet, much like Earth Day is a day focused on protecting the Earth. And each year, OneWebDay picks a key Internet value to focus on. This year’s value is online participation in democracy. And what better topic for an election year than that?

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Where the Carriers Roam

I'm a Sprint customer, but thanks to something called "automatic roaming," I can be reached in the DC Metro subway system, where only Verizon has service. Unfortunately, because of a recent FCC order, wireless customers like me might soon be harder to reach when on the move.

Wireless roaming agreements allow customers of one carrier to get service in areas where that carrier does not have its own network. Unfortunately, a gaping hole in some recent regulation means that an order meant to ensure that wireless customers get the best possible service might actually mean that some customers don’t get any service at all, even in their home region – especially if they’re customers of one of the smaller competitive carriers. This past week, we filed a letter urging the FCC to fix the problem and ensure continued customer access to wireless networks.

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Do not adjust your television. The MPAA is controlling transmission.

If you’ve never seen the intro (original/new) to the TV show “The Outer Limits” then perhaps now is the time. Be sure to have the sound up:

There is nothing wrong with your television set. Do not attempt to adjust the picture. We are controlling transmission…

Perhaps if the intro was written today, it would say, “There is nothing wrong with your television set. But do not attempt to view our movies. The MPAA is controlling transmission.”

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Comcast’s Right Hand Admits FCC Jurisdiction, Left Hand Declines to Comment

For months, Comcast spokespeople have been deny, deny, denying that the FCC has the power to do anything about Comcast’s throttling of BitTorrent traffic. Now, in papers filed as part of a class action lawsuit against Comcast, Comcast has gone the opposite direction, asserting that because “these issues are within the subject matter jurisdiction of the FCC, and because the FCC is actively investigating them,” the judge should put the suit on hold until the FCC renders a decision. The court has agreed, staying the case until the FCC acts.

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Two Doors is One Door Too Many


Susan Crawford recently explained how Google has petitioned the FCC to ensure that Verizon Wireless doesn’t wiggle out of its obligation to make the network they build in the recently-auctioned 700mhz spectrum open to all devices and applications. I just want to add a few points about why a “two door” policy is bad for competitors, bad for the public, and, of course, against the terms of the license. If Verizon implements a two door policy (and the FCC lets them), they’ll have pulled off a phenomenal scam, hurting customers, other carriers, the FCC, and the public at large in the process.

What Is Two Door?

A “two door” policy is one in which people who acquire devices and services from Verizon Wireless itself are treated in one way, while those acquired from other providers who use the same underlying network are treated another way.

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Text Messaging FUD Busting (Part I)

Following the lead taken in Alex’s blog post yesterday, I’m going to address some FUD which is making the rounds about text messaging and spam. This weekend, the New York Times ran an article talking about cell phone spam. Spam – or rather, the threat of spam – is a key argument used by the carriers who oppose our petition asking the FCC to clarify that carriers may not discriminate in providing text messaging services. But don’t be fooled – the FUD thrown around in this article is irrelevant to the issues raised in the petition.

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Taking Net Neutrality to the Hill

I just got back from a [Senate]( [Commerce, Science, and Transportation Committee]( [hearing]( on the future of the Internet. Much was said on both sides of the panelist table, so I’ll just take a moment to hit some highlights: competition and innovation, media consolidation and content, and FCC authority. One disclaimer: this summary represents (of course) how I interpreted the statements at the hearing. Where I can, I’ve included timestamps into the video; if you want more detail, [watch the hearing](rtsp:// direct from the Senate’s web site. Also, check out our [press release](

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Mobile carriers argue, “Problem Solved,” and “Trust Us”

You may recall that last month we filed comments in the FCC’s proceeding on our text messaging petition. We were joined by numerous other parties, including the American Civil Liberties Union, Rebtel, Congressmen, and over 200 concerned individuals. On the other side of the debate, a number of the carriers weighed in as well. The carriers’ main arguments? That the problem is solved, and that consumers are actually better off when the carriers get to decide who speaks and who doesn’t over text messages. Yesterday, we filed reply comments addressing these arguments, and making it clear to the FCC that the problem has not been solved, and that it is unacceptable to have mobile carriers act as editors passing judgment on the content of text messages.

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Comcast: Beaten, But Not Defeated

Comcast has sent a letter to FCC Chairman Kevin Martin clarifying last week’s announcement that they were in discussions with BitTorrent, Inc. about how to improve Comcast’s network management. In short: Comcast has “admitted” nothing, they do not “block” applications or “discriminate,” and the old system they say they will be replacing is still completely legitimate. It seems that Comcast thinks that the FCC needs to keep on investigating the petition as much as we do.

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Comcast and BitTorrent: Together at Last? [Updated]

The Wall Street Journal is reporting that Comcast and BitTorrent, Inc. are now working together to “collaborate on ways to run BitTorrent’s technology more smoothly on Comcast’s broadband network, and allow Comcast to transport video files more effectively over its own network.” While we applaud application developers and network operators getting together to figure out how to improve the efficiency of the Internet, this changes nothing about the issues raised in the petitions on network management; the FCC must still act quickly to ensure that its four principles for broadband service have real meaning and that consumers are protected.

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Round 1 of Text Messaging Comments Ends, Round 2 Begins

The fight to keep speech free in text messaging continued last week, when Public Knowledge and all of the original parties filed comments with the FCC, repeating our message to the Commission that text messaging must be protected. In those comments, we drove home the point that because text messaging and short codes are offered to the public at large, they are common carrier services subject to nondiscrimination, and further developed the policy reasons that text messaging needs to remain a free communications medium.

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Comcast Finds Innovative New Ways to Block Competitors (and Critics)

Sam Gustin at has posted an article about how, at the FCC's open hearing on the future of the Internet, Comcast paid people to arrive early and hold spots for Comcast employees. Unfortunately, a fair number of those employees never actually showed up, leaving some uninterested people sleeping in the first row of the hearing while dozens of interested citizens were stuck outside.

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FCC Moves Forward on Internet Service Blocking and Text Messaging Discrimination

Over the past few months, Public Knowledge, Free Press, Vuze, and several other like-minded organizations have filed petitions with the FCC asking for them to step up, stop ISPs and mobile carriers from blocking lawful communications, and enforce the consumer-friendly policies they adopted over two years ago. Monday, the FCC moved the process forward by asking the public to comment on all three petitions. Look for us to file comments in the coming weeks. You can have your voice heard, too, by filing your own comments; see below for details.

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Uri Geller Attempts to Bend Territoriality Using Only His Lawyers

Today, Public Knowledge signs onto an amicus brief with Google, the American Library Association, and several other like-minded organizations, in the slightly bizarre case of Explorologist Ltd. v. Brian Sapient. In that case, Uri Geller (most famous for his apparent ability to bend spoons) attempts to use foreign copyright law to silence U.S. critics. The crux of the issue is that Explorologist, which is Geller's company, claims to have a United Kingdom copyright on eight seconds of footage at the beginning of the 13-minute clip that Sapient uploaded to YouTube. Explorogist argues that by uploading that video from his United States home to a YouTube server in the U.S., because it was later downloaded by U.K. citizens, Sapient has infringed that U.K. copyright. Even apart from the instinctive “what?” triggered by the idea of attempting to enforce U.K. copyright law in a U.S. court for U.S. activities, there are some serious legal problems with this claim, which the brief addresses and which I'll summarize below.

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T-Mobile Silences Twitter

Well, it seems as if T-Mobile might have missed our petition on text messaging discrimination, because according to several reports, for the past several days, T-Mobile customers have been unable to send messages to the completely opt-in Twitter service. Twitter allows people to send updates from their mobile phone, the web, or instant messenging clients to update friends about what they're up to. While T-Mobile customers could still receive updates, attempts to send text messages to Twitters short-code were rejected. And even more telling than the fact that T-Mobile appears to have “turned off” Twitter was T-Mobile's response when asked about it.

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Clearing the Air on the Text Messaging Petition

This Tuesday we filed a petition with the FCC asking them to clarify that it is unlawful for wireless carriers to engage in “unjust and unreasonable discrimination” in text messaging and short code services, just like it is in voice services.

Since filing we've gotten a lot of feedback. A lot of the negative responses have been based around some misconceptions and misinformation, primarily about how a nondiscrimination rule might affect carriers' ability to block spam and other unwanted messages and about the types of services NARAL and Rebtel offer.

I thought I'd take a minute to clear some things up.

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Hi, Everybody!

I'm Public Knowledge's newest full-time staff member, and I just wanted to say hello and give a brief introduction. I'm here as the Bruce J. Ennis fellow through Equal Justice Works. I'll be filing amicus briefs on Public Knowledge's behalf in cases which affect free speech, as well as helping out on other issues like broadband policy as they come up. A more detailed bio can be found on the staff page.

Looking forward to working with everyone in here and out there to keep speech free and innovation flowing.

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