Not long after I had written my opinion that YouTube should absolutely not censor the disgusing anti-Islam movie that has inflamed oft-flammable parts of this rock we all live on together, interesting news began filtering into the bloodstream. Actors in "Innocence of Muslims" began accusing its producers of misleading them about the roles they played, dubbing dialogue over their performances, and other bizzare tactics that had supposedly been used to keep those in the film from knowing what the end product was going to look like.

[Lily] Dionne was one of about 79 cast and crew who say they were "grossly misled" when they answered casting calls on Craigslist, Backstage magazine and other publications in July 2011 for a film that was described as "an historical Arabian Desert adventure."

But from the beginning, Dionne said the cast and crew had questions, including why the central character in a period piece had a Western name.

"We did wonder what it was about. They kept saying George. And we were like, 'This is the Middle East 2,000 years ago. Who's George?'" she said.

According to Dionne, the actors were then brought back after shooting to do the dubs, but the producers had them speak isolated lines and words, completely out of context. For instance, they were asked to simply say the name "Mohammed" and nothing else, with no explanation as to why. 79 cast and crew members have since released a statement claiming they were taken advantage of.

Now, one actress, Cindy Lee Garcia, has gone a step further and sued the man who produced the film, as well as YouTube, to, among other things, get the film taken down.

In a 17-page complaint filed Wednesday in Los Angeles Superior Court, the lawsuit from Cindy Lee Garcia also names YouTube LLC, the video-sharing website on which the video is posted, and its parent company, Google Inc., as causing irreparable harm to Ms. Garcia for refusing to remove the content from their site.

"The lawsuit is not an attack on the First Amendment or the right of Americans to say what they think," but it demands the content be pulled off because "Ms. Garcia in no way consented to the use of her performance, image or likeness in such an offensive and file film," Garcia's attorney, M. Cris Armenta, said in a statement.

A couple of things strike me here, so I'll take them in order. First, I'm unaware of how a film's director could be sued for slander (another aspect (pdf) of Garcia's lawsuit) because of the way he/she decides to portray the actors in their films. Slander should be out the window, since Garcia and the others were playing fictional roles, and so are not portrayed to be anything at all beyond the characters they were playing. Could Kevin Bacon sue Sleepers director Barry Levinson because the result of post-production for the film made his character look just a tad too child-rapey? The privacy violation and likeness rights violation in the suit seem equally ridiculous. She consented to be in a film! It's understandable why she's upset, but if that's allowed, imagine how many actors would start suing every time a film edit is a disaster and makes them look bad.

As for the "fraud" claim, that may be the strongest of a bunch of very weak claims. You could make the case that the various elements of fraud are present, but almost every one of them is a stretch.

In any case, today the judge refused to order an emergency takedown of the video—though the lawsuits will move ahead.

Even if there is a civil suit to be had here, targeting YouTube and requesting they take the film down has all the hallmarks of a head-in-the-sand approach (beyond raising questions of secondary liability). The cat is not only out of the bag at this point, it's protesting at its local US Embassy. The damage is done. I can certainly understand* the distress actors feel over the worldwide reaction to a film they probably thought would never be seen, but that doesn't mean the film has to come down. Google, thus far, agrees, and has refused to remove the video beyond censoring it in certain countries.

*One caveat: the trailer for this film was released in May. Where the hell were all these outraged actors back then? Why is it only now the film has made the news that they are releasing statements, speaking out, and filing lawsuits? Did none of these actors bother to view the movie they were in before the mainstream media picked this up?

Wells Fargo, of course, was one of a bunch of the big banks heavily involved in questionable activities that brought the world to the precarious economic conditions we're still living in today. Just a few weeks ago, the company settled charges that it had misled cities and non-profits when selling them risky securities without disclosing the risks. The company gets a slap on the wrist -- without having to admit guilt -- and one executive (again without admitting guilt) gets a six month suspension. Have you heard about any top execs at any of the banks getting fired for financial malfeasance? No? Well, perhaps it's because they're focusing on the real trouble makers. Like Richard Eggers. 49 years ago, Eggers, as a teenager, tried to stick a cardboard cutout of a dime into a washing machine. He didn't get away with it at the time, and was arrested for fraud. He somehow put his life back together and, until recently, was a phone customer service agent for Wells Fargo.

And now he's really paying the piper: Wells Fargo has just fired him for the decades-old incident that, again, involved a dime. Even accounting for inflation, we're talking about a dime. However, thanks to supposedly "tough" new regulations concerning financial institutions, barring them from employing execs convicted of fraud, Wells Fargo is claiming that it had to fire Eggers.

“We don’t have discretion to grant exceptions in situations like this. Once we find out someone has a criminal history of dishonesty or breach of trust we can no longer employ them.”

Eggers has responded by filing a civil rights complaint against the company and federal regulators. He and his lawyers are hoping to turn it into a class action lawsuit, as apparently a number of other employees at banks have lost their jobs under these rules. Actual execs responsible for the financial crisis? Not so much.

This is yet another case where laws like this must "sound good at the time" to the policy makers putting them together without any sense of who it will really impact. And the end result is that we sure are making Mr. Eggers "pay" for that dime stunt in 1963, huh?

For a few years now, we'd been noting serious problems with the Computer Fraud and Abuse Act (CFAA), which was supposed to be about "criminal hacking" of computers. That's the theory, at least. Except that various prosecutors had defined it so broadly that they felt basically anything people did that violated a computer use policy or terms of use policy could make you a criminal hacker. It's why prosecutors went after Lori Drew for supposedly "violating" MySpace's terms of service. There was nothing else they could pin on her, so they twisted the law. Of course, that also creates great power for anyone who creates a terms of service agreement, as it makes it easy to turn your users into criminals.

Early last year, we wrote about a very troubling CFAA ruling, which effectively found that if you do anything on a work computer that your employer doesn't like, you're a criminal for violating the CFAA. Yes, by failing to abide by your employer's broad "computer use policy" you could be charged with a being a criminal hacker under the CFAA. That's what happened to David Nosal. He had accessed some information from his employer's computer system -- which he was authorized to access. He wanted to use that info because he was going to a competitor. That's obviously questionable on the ethics scale, but computer hacking? Hardly. Except that the district court thought it was.

Thankfully, earlier this year the 9th Circuit appeals court reversed the ruling, with Judge Kozinski noting that it makes little sense to interpret a statute in a manner that turns "ordinary citizens into criminals."

A few weeks ago, the DOJ (who seemed to love these kinds of cases) seemed to realize that perhaps it was silly to keep arguing against Nosal here, and admitted that it wouldn't ask the Supreme Court to hear the case on appeal, meaning the 9th Circuit ruling stands. While it's good that the DOJ apparently realized that pursuing this any further was a bad idea, it's still ridiculous that it went forward with this theory in the first place, and argued it all the way through the initial appeal. Either way, while Kozinski's ruling is only binding on the 9th Circuit, hopefully other courts will pay attention to the reasoning behind it.

There's a sucker born every minute -- if you like to believe unverifiable statistics. Usually, if it's too good to be true, it ain't true. But as technology gets better, sometimes it's hard to distinguish sufficiently advanced algorithms from magic. Here are a few scams that successfully fooled some folks for a while.

• A stock-picking robot named Marl convinced thousands of investors that it could identify penny stocks that were about to soar in price. The SEC is looking to impose a fine and force the creators of Marl to repay their duped investors... but with claims on a website like: "The longer Marl is allowed to run on a computer … The More Advanced He Becomes!" How could anyone go wrong? [url]
• Penn and Teller don't usually do pranks, but when it comes to tricking Nobel prize laureate, Arno Penzias, they apparently make exceptions. Creating a fake computer with voice recognition in the late 1980s fooled this brilliant physicist, but nowadays Apple's Siri is in TV ads all the time doing nearly the same routine. [url]
• Baron Wolfgang von Kempelen built a mechanical chess-playing machine (shaped like a Turk...) that gained widespread fame in 1769. This mechanical turk was actually controlled by a hidden human being, but only a few hundred years later, we actually could build a chess playing robot with grandmaster skills. [url]
• To discover more interesting AI-related content, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

US Copyright Group was the first of the US-based copyright trolls, suing thousands of individuals in a single lawsuit, trying to get them to pay up (rather than going through an actual trial). US Copyright Group is really a front for a DC law firm, Dunlapp, Grubb & Weaver. One of its very first "big" lawsuits was against about 5,000 people for supposedly partaking in the sharing of Uwe Boll's Far Cry. Of course, as we had noted, there was a pretty big problem in the Far Cry lawsuit, in that the US copyright registration was filed too late for many of the accusations of infringement.

Partly on the basis of the registration problems, Dmitriy Shirokov (with the law firm Booth Sweet) sued US Copyright Group, DGW and its key lawyers for fraud, extortion and conspiracy back in 2010. DGW shot back angrily, claiming that it's perfectly fine for for lawyers to lie to the court, if it's part of the course of litigation:

"Although an attorney may be accused of defrauding opposing parties, knowingly committing discovery abuses, lying to the court, or purposely and maliciously defaming another individual, if it takes place during the course of litigation, the conduct simply is not actionable,"

Of course, the threats and extortion weren't actually "during the course of litigation." DGW also claimed that there was no "harm" for Shirokov, because he didn't settle, and thus hadn't paid up. DGW then went even further, asking for sanctions against Shirokov and Booth Sweet, claiming that it was actually them who were filing lawsuits for "improper purpose."

The court has now ruled in response to DGW's motion to dismiss, and it seems pretty clear that the judge is not impressed by DGW at all. The motion to dismiss was rejected and the class action lawsuit against the company moves forward.

Judge Boal recommended that the motion for dismissal be denied in significant part. The defendants had argued that Mr. Shirokov was not entitled to sue them at all, since he wised up before paying their demands, and his claimed injuries were out-of-pocket costs of investigating the threats. They claimed that the Noerr-Pennington privilege, an antitrust doctrine, prevented any liability. And they argued that lawyers and their clients have absolute immunity for even intentional torts, or in DGW’s words: “although an attorney may be accused of defrauding opposing parties, knowingly committing discovery abuses, lying to the court, or purposely and maliciously defaming another individual, if it takes place during the course of litigation, the conduct simply is not actionable.” Just think about that one for a minute.

Judge Boal thoroughly debunked each of those claims. The fees Mr. Shirokov incurred in investigating the trumped-up copyright claims constitute an injury-in-fact that gives him standing to sue. The Massachusetts litigation privilege does not apply to threats of litigation that are not seriously contemplated in good faith. And the Noerr-Pennington antitrust doctrine did not apply outside of antitrust law, and even the First Amendment right to petition isn’t an absolute protection for litigation threats.

It's important to note that, in this case, it's the specific issue of the non-registered copyrights that is key. That is, the lawsuit isn't about the general practice of copyright trolling -- but the fact that it was done using claims and demands that were not true (e.g., the statutory damages if found guilty of sharing, even though such statutory damages were not available for a work that hadn't been registered).

Along those lines, the court didn't completely side with Shirokov, saying that some of the racketeering and fraud charges should be dismissed. But, large parts of the lawsuit survive and will move forward -- which doesn't seem like a good thing for DGW or US Copyright Group. Perhaps, next time, they'll check the copyright registration before filing suit.

With so much focus on Nigerian-based scams, many Nigerian scammers now seek to use middlemen to help with things like bank accounts to keep suspicion levels lower. There are plenty of stories of people in the US, Europe and elsewhere who take "jobs" that involve having a local bank account through which scam money flows to Nigeria -- where they're allowed to keep a percentage of the cash. Often, they are not otherwise involved or knowledgeable about the scam.

That appears to be the case with one woman in Australia, who has now gotten in trouble... because she scammed the scammers out of $33k while managing the pass through bank account (found via Slashdot). She apparently had no idea of the scam that was going on (involving bogus online used car sales), but decided to keep some extra amounts of money. Of course, when some of those scammed in the car deal sought to track down the scammers... the focus shifted to her, where her own thievery from the thieves was discovered.

The story notes that the woman has now pled guilty to "aggravated fraud," though it's unclear if the fraud was for the original fraud from her "bosses" in the Nigerian scam ring... or for scamming the scammers themselves. Somehow I doubt they would press charges.

The Belgian anti-piracy group, SABAM, has been one of the most aggressive anti-piracy groups out there. The group recently lost two huge court cases in which it tried to get courts to force ISPs and hosting firms to put in place filters to stop infringement. Perhaps more controversially, the organization has tried to require social networks to pay a flat fee for all the infringement happening on their networks. A year ago, there was a story of SABAM taking cash for a band they didn't represent after a TV show played a "joke" on the group.

However, in what appears not to be a joke, it looks like SABAM and some of its execs are facing some pretty serious charges, including "falsifying accounts to cover up bribe payments, abuse of trust, copyright fraud and embezzlement," according to TorrentFreak. Apparently, according to the charges, SABAM wasn't very good at actually distributing the money it was supposed to distribute to artists. Things to keep in mind every time one of these groups insists it's looking out for the interests of artists...

As you recall, last month's SOPA/PIPA protests were followed the very next day by the US government shutting down Megaupload. While there have been plenty of discussions about the wider implications of the January 18th anti-SOPA/PIPA protests, there's been less analysis about the wider impact of the Megaupload case. Lawyer Philip Corwin has a long (really, really long) article suggesting that the longer term impact will come more from the Megaupload shutdown... and not in a good way.

It is however the viewpoint of this article that the Megaupload indictment will likely be seen in the long run as having a more significant impact on Internet business models and innovation than the withdrawal of PIPA and SOPA — and this would be the case even if those bills had been enacted in some combined form.

The article covers a lot of ground (much of which you'll already be familiar with, if you read Techdirt regularly). But the gist of it is that the details of the indictment significantly blur the lines between what is civil and and what is criminal copyright infringement, and also rely on multiple, very common practices for various cloud service providers. While the US government cheers on the fact that other cyberlockers are changing how they operate, there's significant fear that this will massively alter the "cloud computing" landscape, in that it creates a tremendous amount of uncertainty, where services with perfectly legitimate intent can be accused of criminal activities based on very questionable claims. Perhaps the most ridiculous is the catch-22 situation in which Megaupload got blamed for trying to hide the infringing activity on its site. If it had left it up, it would have been accused of facilitating or inducing infringement, but by making it hard to find, it's accused of conspiracy to hide the activity.

Megaupload removed the search feature on its website, which had previously been of assistance to those looking for infringing content. The indictment alleges that this was done to disguise the company's willful infringement, much of which was purportedly facilitated by other "linking" websites operated by unrelated third parties. But if the search feature had not been removed, wouldn't that have been cited as evidence of facilitating infringement? Similarly, the indictment notes that "browsing the front page of Megavideo.com does not show any obviously infringing copies of any copyrighted works; instead, the page contains videos of news stories, user generated videos, and general Internet videos in a manner substantially similar to Youtube.com", but then cites "the most-viewed videos in the Entertainment category on Megavideo.com… has at times revealed a number of infringing copies of copyrighted works that are available from Mega Conspiracy-controlled servers" as evidence of knowing facilitation of commercial infringement.

Damned if you do, damned if you don't.

But the bigger fear is about the kinds of businesses that are put at risk under the vague standards used in the indictment. The article talks about popular services like Dropbox, which could be accused of many of the things in the Megaupload indictment. It also talks about YouTube, and how -- if these kinds of enforcement actions were popular five years ago -- we might not have had a YouTube any more:

A recent New Yorker profile of YouTube's evolution makes one wonder if the "YouTube Conspiracy" might not have been criminally targeted if this enforcement tactic was being employed when it launched in 2005, especially since e-mails between its principals indicated a deliberate toleration of infringing content to build traffic — e-mails that bear a distinct resemblance to some of those reproduced in the Megaupload indictment.

Instead, as Corwin points out, YouTube "has become a treasured piece of contemporary Americana."

For all the talk of how SOPA and PIPA were bad for changing the way the internet would have to work, it's worth noting the very very real impact of the Megaupload takedown on the potential development of various new services and business models. The risks and uncertainty increased massively on January 19th, and not in a good way for anyone.

Yesterday we wrote about the bizarre seizure of a music blog, RnBXclusive.com, by UK law enforcement officials. Many people doubted that it was real, given the insanity of the splash page that SOCA -- the UK's Serious Organized Crime Agency -- had put up on the site. However, SOCA has since confirmed that it's real. SOCA is also claiming that this is about "fraud" rather than copyright infringement, because the site apparently had posted some pre-release music (something that happens pretty frequently). It's called a leak, not fraud. And many artists embrace them -- or (quite frequently) leak the works themselves because it builds up buzz.

SOCA is also making the absolutely laughable statement that this one blog was costing the labels "approximately £15 m per year." Perhaps in some fantasy land where the IFPI/RIAA is in charge of "new math," but not anywhere in reality. Now, certainly some of these leaks may have broken the law, but at best they should be civil issues and actual harm should be proved, rather than fantasy harm. While RnBXclusive was a decently widely read blog among music blogs, Dajaz1 (who, again, knows in great detail how all this insanity works) is pointing out that if the £15m claim is accurate, then you could easily sum up all the music blogs around, and they would account for more losses than "what the recorded music industry has made total since the very first record deal was signed. Per year."

Isn't it time that law enforcement stopped relying on fantasy numbers and started living in reality? Especially when it comes to censoring blogs?

Ah, the hits just keep on coming for Righthaven. Having already had judges in Nevada and Colorado dismiss Righthaven cases for lack of standing, the one remaining state where Righthaven had tried its questionable legal tactics was South Carolina, which had prompted a somewhat epic countersuit. Not surprisingly, it's looking like it's a trifecta of losses for Righthaven, as magistrate judge Jacquelyn Austin has made it clear that she's not buying whatever it is that Righthaven is selling. She's given the company until October 28th to explain why the case shouldn't be dismissed for lack of standing.

Defendant contests Plaintiff’s ownership of the disputed copyright and argues the case should be dismissed for lack of standing. Plaintiff’s ownership of its assigned copyrights has been contested in Nevada and Colorado. Judges in Nevada have dismissed complaints for lack of standing and issued orders to show cause why these cases should not be dismissed for lack of standing. The copyright assignments in the Nevada cases are governed by a Strategic Alliance Agreement between Righthaven LLC and Stephens Media LLC which appears to be very similar to the Copyright Alliance Agreement (the “CAA”), including its Schedule 1 – Terms and Conditions, between Plaintiff and MediaNews Group, Inc. (“MediaNews”) that Defendant asserts governs the copyright assignment at issue in this case.* Moreover, the CAA appears to support Defendant’s claim that Plaintiff does not have standing to sue for copyright infringement. Specifically, the CAA appears to qualify any copyright assignments it governs such that Plaintiff is left only with a bare right to sue and does not own any exclusive rights in the copyright, as would be required for Plaintiff to have standing to allege an infringement claim on those copyrights. See Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881 (9th Cir. 2005) (holding that an assignee who held an accrued claim for copyright infringement, but who had no legal or beneficial interest in the underlying copyright itself, could not institute a cause of action for infringement); Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir. 1982) (holding that one who owns no exclusive right in a copyright may not sue for infringement; only the owner of an exclusive right under a copyright may bring suit).

Although Plaintiff argues substantive analysis of the assignment must await discovery, the Court believes this issue should be addressed because it goes to Plaintiff’s standing to bring a copyright infringement claim at all. Thus, in the interest of judicial economy, the Court issues this Order to Show Cause why the case should not be dismissed for Plaintiff’s lack of ownership of any exclusive rights in the copyright and, therefore, lack of standing to sue.

I'm assuming that this is really just more guidance to Righthaven competitors from a judge who recognizes Righthaven's "genuine" legal arguments, right Steve?