An AI-powered tool designed to target trademark violations on social media was used to silence critics of SXSW, the massive annual tech, music and film conference in Austin, Texas.Each year in March, SXSW takes over Austin. This year, thanks to the demolition of the city\u2019s aging convention center, events sprawled to more locations than usual, from hotel ballrooms to vacant lots. But the character of SXSW has changed, growing more corporate and less accessible since its relatively humble origins in 1987, and today it has numerous detractors. This year some of those dissenting voices found themselves targeted by BrandShield, a \u201cdigital risk protection\u201d service that claims to use artificial intelligence to automate the process of identifying and removing social posts that misuse trademarks.\u00a0Among the groups to receive a social media takedown notice was Vocal Texas, a nonprofit dedicated to ending homelessness, HIV, poverty and the war on drugs. On March 12, members of the group set up a mock encampment in downtown Austin, to draw attention to the possessions that unhoused people can lose during \u201csweeps,\u201d when police and city officials clear out and destroy or confiscate their tents and other lifesaving supplies.\u00a0An example of an image deleted by InstagramAn Instagram post by Vocal Texas read, \u201cSXSW means unhoused Austinites in downtown face encampment sweeps, tickets and arrests while the City makes room for billionaires and corporations to rake in profits.\u201d The accompanying image promised an art installation called \u201cSweep the Billionaires,\u201d and does not use SXSW\u2019s logos.\u00a0Even so, the mere mention of SXSW was apparently enough to flag BrandShield\u2019s trademark detection service, resulting in the post\u2019s fully automated removal from Instagram. Cara Gagliano, a senior staff attorney who specializes in trademark and intellectual property law at the Electronic Frontier Foundation said that posts like these do not violate SXSW\u2019s trademark.\u201cYou\u2019re allowed to use a company\u2019s name to talk about the company, right?\u201d Gagliano told 404 Media. \u201cHow else are you going to do it?\u201dGagliano noted that trademark law has specific carveouts for exactly this kind of critical speech. \u201cExamples like that, where it’s not (for example) advertising a concert with a name similar to South by Southwest … are pretty clearly over-enforcement,\u201d she said.EFF interceded in March 2024 when the Austin for Palestine coalition received a cease and desist letter from SXSW, accusing them of infringing on the conference\u2019s trademark and copyright. The coalition, which was involved with organizing successful protests against the festival\u2019s sponsorship by the U.S. military, had made social media posts featuring SXSW\u2019s trademarked arrow logo reimagined with bloodstains, fighter jets, and other warlike imagery. The EFF wrote a letter on the coalition\u2019s behalf, and the group never heard from SXSW again.\u00a0But Gagliano explained that this situation is different from the takedown notices sent by BrandShield. \u201cWhen it’s a threat sent to … the person who made the allegedly infringing use, them going away is a victory for the client because nothing bad happens to them, but when you have these takedowns … [while] it’s good that they didn’t go even further and file a lawsuit, they also don’t have any incentive to retract the complaint, and so the content stays down.\u201dThis year, many of the protests and \u201ccounter events\u201d were organized by a very loosely associated coalition of groups called Smash By Smash West, which included Vocal Texas along with many others, from musicians and independent movie directors to event venues.\u00a0404 Media reached a representative of Smash By Smash West via Signal who used the name\u00a0 \u201cBurnice.\u201d We agreed to protect their anonymity, but verified that they were involved with the organizing of Smash By events. Operating since 2024, Smash By has no leaders and essentially anyone can organize an event under its umbrella. This year, there were over 100 events, according to Burnice. \u201cIt is a decentralized call to action and a platform that enables promotion and connecting together all of these different events.\u201dSmash By Smash West provided us with dozens of screenshots of Instagram takedown notices as well as many of the posts which had been removed.BrandShield\u2019s software enables mass reporting of potentially infringing content, with reports in turn evaluated by Instagram\u2019s automated moderation systems. Despite their obviously automated nature, BrandShield claims to use a \u201cdedicated enforcement team of IP lawyers\u201d to ensure that takedowns are \u201ctimely, targeted and fully compliant.\u201d\u00a0The BrandShield website reads, \u201cWhether it’s a distorted logo, a counterfeit image, or a cloned storefront, our proprietary image recognition technology scans marketplaces, social media, paid media, and mobile environments to catch threats at the source.\u201d\u00a0However, despite these assurances, it seems clear that BrandShield\u2019s trademark targets with a very broad brush, and seems incapable of distinguishing between trademark violations and protected free speech. Although BrandShield initially connected us with their public relations department, they did not respond to repeated requests for comment including an emailed list of inquiries.\u00a0Instagram\u2019s automatically generated takedown notices include the sentence, \u201cIf you think this content shouldn\u2019t have been removed from Instagram, you can contact the complaining party directly to resolve your issue.\u201d However, there is a link allowing the recipient to appeal the takedown, which then leaves it up to Instagram moderators\u2019 discretion if it returns.Gagliano explained that this is a crucial area where trademark differs from copyright law. Thanks to the Digital Millenium Copyright Act (DMCA), there\u2019s a clear (though often arduous) path to contesting false claims of copyright violations which allows content creators to get their posts put back. There\u2019s no similar, mandatory pathway written into trademark law. \u201cThere’s no counter notice process where they say, \u2018Okay, you told us this is fair use, so we’ll put it back up.\u2019 And that’s a really frustrating thing,\u201d Gagliano said.Mathew Zuniga, who does most of the booking for Tiny Sounds Collective, an organization that throws free DIY music shows and publishes zines, said he struggled with the process offered by Instagram after a post about a Tiny Sounds\u2019 Smash By concert was taken down.\u00a0\u201cI tried to do it,\u201d he said. \u201cIt didn’t really go through.\u201cWhen he reposted the same image and text, but without tagging Smash By Smash West\u2019s Instagram account as a collaborator, the post remained online.\u00a0\u201cI think it\u2019s silly, as if these DIY shows in a bookstore are pulling anyone away from South By,\u201d Zuniga said. \u201cI think it was more of a deliberate attempt to take down anti-South By Southwest rhetoric online.\u201dWhen reached for comment, SXSW\u2019s PR team sent back a prepared statement, noting that the law requires them to \u201ctake reasonable steps\u201d to enforce their trademarks.\u201cSXSW\u2019s efforts are not intended to limit commentary, criticism, or independent reporting, and we respect the importance of free expression,\u201d the spokesperson\u2019s statement continued. \u201cWe use third-party services, including BrandShield, to help identify potential issues at scale, and we recognize that errors can occur.”\u00a0By contrast, Burnice explained that, rather than trying to steal SXSW\u2019s trademark, Smash By Smash West makes it a condition that participants can\u2019t describe their events as free or alternative SXSW events. \u201cSmash By\u00a0 … was an attempt to politicize the DIY scene,\u00a0 the \u2018unofficial\u2019 South By shows, and make them explicitly anti-South By.\u201d\u00a0Smash By provides alternative logos, some of which are wholly unique but others based on parodying or \u201cdetournements\u201d of the SXSW logo, similar to what the Austin for Palestine coalition did in 2024. Burnice expressed their frustration with the automated nature of the quashing of dissent this year.\u00a0\u201cAll of that is actually just happening by robots talking to robots,\u201d they said. \u201cIt’s an AI system that mass reports these accounts, and then, you know, probably an AI system at Instagram that just sorts through, and approves or rejects.\u201dFor her part, Gagliano expressed skepticism over whether artificial intelligence plays a major or important role at companies like BrandShield beyond just its current popularity as a tech buzzword. \u201dI haven’t seen any kind of change in the volume of requests for help that we’re getting, and this is one thing where I’m a little skeptical that it’s really made much difference, because they were already using automated tools before, and I think in any instance, the tools are not going to be able to reliably determine what’s actually infringement.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"