The middle finger, or flipping the bird, or digitus impudicus, is a wonderfully universal way to let someone know what you think of them. We recently told you the story of a delightful woman who fashioned her Christmas lights into the gesture as a way to help her neighbors get into the holiday spirit. What I didn't realize is how many stories there are of people giving the bird to the police while driving around on streets. Quite frankly, it never occurred to me to be driving past someone who has the ability to make me miserable in so many different ways and give them the finger.

But that's exactly what Vietnam veteran John Swartz of New York did, flipping off an officer and his speed gun as he drove past in 2006. He was subsequently pulled over and arrested for disorderly conduct. He's apparently been fighting back ever since and now his court case has been reinstated by a federal appeals court, who didn't believe the arresting officer's explanation that he pulled the car over because he thought the middle finger was meant as an alert that the female driver, Swartz's wife, needed assistance.

From the three judge panel:

Perhaps there is a police officer somewhere who would interpret an automobile passenger's giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer.

On the one hand, it's good that a court recognized that there is no law against flipping off the police and that free speech should be protected from hysterically reaching justifications for revenge arrests like this. On the other hand, it's a little sad that a federal appeals court has to delve into such territory at all. Of course, none of this should be read as some embrace for flipping off police in general, but speech is speech and it should be protected. In any case, this isn't over yet and no date for trial has yet been set, so we'll have to wait for a verdict.

Techdirt has noted before the hypocrisy of Disney in refusing to allow others to draw on its creativity in the same way that it has drawn on the art and ideas of the past. Here's another example, but this time it's an opera that's had difficulties:

A British-designed and directed opera about Walt Disney which premieres in Spain this month before coming to London has been forced to tell the great cartoonist's story without any of the images of the characters that made him a household name. Minnie, Donald, Pluto and Goofy, not to mention Mickey Mouse himself, will not be appearing on stage with the singers.

The Perfect American, the latest work by the acclaimed composer Philip Glass, concentrates on the last years of Disney's life, when he lay dying of lung cancer while planning to have his body frozen. It portrays Disney as a megalomaniac with McCarthyite, racist and misogynist tendencies, so it is clear why the global entertainment corporation has denied rights.

Rather weirdly (sour grapes?), the artistic director of the English National Opera, which will perform the opera in London, says that "we would probably not have used the real Disney characters in the production even if we had been allowed to," so in practice Disney's refusal hasn't turned out to be a big problem. But there's still an interesting issue here.

As Techdirt has discussed before, the famous "Mickey Mouse Curve" shows how copyright extensions always seem to come through just as Mickey Mouse is about to enter the public domain. So it's not entirely impossible that Disney will be pushing for yet another extension fairly soon, and for more after that.

What that means in practice is that creators of works like the Philip Glass opera presenting Walt Disney in a less than totally flattering light are likely to find themselves unable to use any of the iconic Disney images beyond what is permitted by fair use. And so a crucial facet of modern culture will not be available for artists to build upon as they wish for the foreseeable future -- hardly how the copyright bargain of a time-limited government-enforced monopoly in exchange for releasing works into the public domain is supposed to work.

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The EFF has a post up about how Victoria's Secret sent a legal nastygram to an ISP taking down a parody campaign by an anti-rape organization, FORCE, called Pink Loves Consent. The campaign was a parody designed to raise awareness of these issues, by mocking Victoria's Secret's "PINK" line of clothing, that includes underwear that says things like "sure thing" and "unwrap me." The parody campaign replaced those with things like "ask first" and "respect." The page showed what Victoria's Secret could have done to put forth a more positive, more respectful message... and the company's response was to go straight to the hosting company and demand the site be taken down (which it was, though they found a new host who was willing to put it back up). Parody is a key element of free speech -- and issuing a takedown over this seems like a pretty clear attempt to stifle free speech. And, really, it just makes Victoria's Secret look really, really obnoxious. Were its lawyers really so offended by positive messages, rather than pure sexual objectification?

India's somewhat schizophrenic relationship with privacy and freedom of speech has been discussed here before. The Indian government, on one hand, seems to want to do the right thing and safeguard its citizens from censorship and surveillance... but only up to a point. Once the going gets rough (i.e., outbreaks of violence, demonstrations), the government begins ramping up its surveillance and cracking down on free speakers.

Given this background, it's a bit surprising to hear that India has only just recently chalked up its first Twitter-related arrest. After all, the UK and the US have been doing it for years already. The person on the receiving end of this unfortunate record-setting event made the mistake of criticizing a politician (of course).

On 20 October, he (Ravi Srinivasan) posted a tweet to his 16 followers saying that Karti Chidambaram, a politician belonging to India's ruling Congress party and son of Finance Minister P Chidambaram, had "amassed more wealth than Vadra".

He was alluding to Robert Vadra, son-in-law of Congress party chief Sonia Gandhi, who was at the centre of a political row after allegations over his links with a top Indian property firm.

This message ("got reports that karthick chidambaram has amassed more wealth than vadra") went out to all of 16 followers and somehow found its way to Karti himself, who responded like anyone else would when mildly insulted: by contacting law enforcement...

Karti Chidambaram (@KartiPC) did not take the tweet in good humour and filed a police complaint on 29 October.

… which immediately responded with the sort of speed reserved for appeasing angry politicians.

They arrested Mr Srinivasan early next morning, charged him under Section 66A of India's Information Technology [IT] Act, and demanded 15 days of police custody.

Srinivasan's single allegation could have been addressed through India's libel laws, but since that route takes time and money, the offended politician instead used the police department to take care of the "problem" by using the "sweeping power" of Section 66A of the IT Act of 2000.

[Section 66A] can send you to jail for three years for sending an email or other electronic message that "causes annoyance or inconvenience".

On the face of it, this protects citizens against online harassment.

In reality, the law is more often used by the state as a weapon against dissent. In each such case, police action has been swift and harsh.

In April, the West Bengal government led by Chief Minister Mamata Banerjee used Section 66A against a teacher who had emailed to friends a cartoon that was mildly critical of her.

Loosely worded laws, ostensibly designed to "protect" citizens, usually devolve into tools of censorship. For some strange reason, those with the most power are the ones who feel the most "threatened" by open criticism and dissent. It's little wonder that legislators are more than willing to push through open-ended "cyberlaws" that can be bent to fit any situation. The end result is this fact, which is perhaps least surprising of all:

And, interestingly, Section 66A has never been used against politicians.

To Srinivasan's credit, he refused to back down from his statement. In addition, his arrest and subsequent appearance on television led to him gaining another 2,300 followers, many of whom are wondering if his arrest was tied to his anti-corruption campaigning. Despite the public support of the arrested tweeter, the politician behind his arrest remains unrepentant, tweeting out this amazing statement in his own defense:

"Free speech is subject to reasonable restrictions. I have a right to seek constitutional/legal remedies over defamatory/scurrilous tweets."

There's nothing "reasonable" about arresting someone rather than following the "constitutional/legal remedies" set up by India's libel law. This is simple thug tactics being deployed by someone operating without fear of reprisal. Section 66A needs to be cleaned up if freedom of speech and privacy are going to be protected, rather than just paid lip service at convenient intervals.

The Washington Post has an interesting story about Facebook's admission that it erroneously took down a widely shared image posted by an anti-Obama group over the weekend. The somewhat viral image (which, as the article notes, isn't exactly the most truthful of images -- but perhaps par for the course when it comes to political speech) was removed after Facebook said it "violated Facebook's Statement of Rights and Responsibilities." However, people going through Facebook's official list of Rights & Responsibilities didn't turn up anything that the content violated.

Leaving aside the question of exaggerated political speech, this raises the same question that we've wondered in the past: why do so many people rely on closed platforms today, that allow somewhat arbitrary removal of speech? While Facebook eventually admitted its error, this is hardly the first such case of Facebook deciding what you can or cannot talk about. That's a tremendously powerful position that Facebook's users have granted to Facebook in making it their communications platform of choice. Many people will say that this is "the price" that people pay to be on a platform where everyone else is -- and that the convenience of Facebook outweighs such costs. But it's also why so many people are a bit nervous about Facebook these days.

We've been covering the ridiculous patent case involving an iPhone and Android app called Speak for Yourself, which was a tool used by many people who had various issues with being able to speak. We became aware of it, because of a mother whose young daughter Maya relied on the tool to actually communicate, and who feared that the tool would disappear due to the lawsuit. While the lawsuit was ongoing, despite a lack of an injunction, the patent holder was still able to get the tool removed from both the Apple App Store and Google's app store.

Thankfully, the makers of Speak for Yourself have now announced that the case has been settled and the patent holder and licensee who were suing them, Semantic Compaction Systems and Prentke Romich Company, will drop all claims and takedown notices concerning SFY. Unfortunately, the terms of the agreement are confidential -- which is common in these kinds of things, but far from necessary. It's likely that SFY paid something here, though there have been questions about the validity of the patent in question (5,920,303) for a keyboard with keys that dynamically change. While this news means that the Nieder family no longer needs to worry, it's unfortunate that this whole thing had to happen in the first place. It was a pointless and wasteful distraction from all of these companies focusing on actually innovating and competing in the marketplace, like they should. As for the Nieders, there doesn't appear to be an update on their blog yet, but perhaps it's because little Maya has a brand new baby brother. Hopefully she enjoys speaking to him with the SFY app, and her parents can rest easy knowing they don't have to worry about their daughter's ability to communicate any longer.

Mike recently discussed the ridiculous assertion that copyright can't be used for censorship, despite the fact that it has clearly been used to do exactly that multiple times. And it's not just copyright being waved around by IP thugs like a Louisville Slugger with a © on the sweet spot. Claims of trademark infringement have been used as a handy beating implement in attempts to silence criticism (like "[x] company sucks" sites) or keep a competitor from detailing the superiority of its product.

Fortunately, infringement claims like these rarely succeed in doing anything more than driving more eyeballs to the offending content. Another attempt to "swing for the fences" with the trademark bat has resulted in the plaintiff hitting itself squarely in the face, this time over in the Netherlands. This particular self-beating revolves around a relic from days past know as "The Phone Book."

Much like in the US, everyone in the Netherlands receives a phone book whether they want one or not. (Fortunately, it looks like the Dutch only receive one, unlike many metro areas, where two or three phone books [minimum] are crammed into mailboxes or dumped unceremoniously on doorsteps every year. And it's not just a "big city" problem. I live in a town of 1,300 and I get three [3][!] phone books every year.) You can opt out, but the phone book publisher would very much rather you didn't. 24oranges has more details on one man's fight against the wishes of the dying [via Overlawyered]:

To help stop this form of harassment, a guy called Alexander Klöpping has registered a URL called sterftelefoongidssterf.nl(diephonebookdie) which redirects to the phone book cancellation form. In other words, if you want the phone book to be eliminated (‘die’) from your life, follow that link.

Or don't follow it. 24oranges points out that De Telefoongids has been known to ignore cancellation requests. Also this: the URL is no longer live. (Thanks to Google Cache, you can still enjoy the heady rush of a URL redirect. WHEE!!!)

And that's all Klöpping's URL did: redirect users to the cancellation form on De Telefoongids' website. Apparently, using "telefoongid" in the URL was somehow a "trademark violation" and Klöpping was ordered to cease and desist. Klöpping wasn't having it:

Klöpping replied that he will take the URL offline as soon as the dead tree merchant stops shoving the equivalent of “months of advertising leaflets”, and “half a percent of all paper used in the Netherlands” through everybody’s mailboxes, including those of people that have indicated they want to receive no advertisements through the legally binding “ja-nee” and “nee-nee” stickers (yes-no and no-no).

When the continued success of your business relies on ignoring "legally binding stickers," perhaps it's time to reconsider your distribution plan. Selling advertising space in redundant stack of paper is tough, but ignoring both stickers and your own webform is only going to get you dragged into court, rather than the other way around.

It didn't take long for De Telefoongid's bullying tactics to turn into self-inflicted wounds. Within 24 hours of the public dustup, the Dutch parliament called for making the phone book opt-in, something that should be implemented worldwide. Of course, some people still use the phone book and by all means, they should still receive one. Until opt-in becomes the norm, the rest of us can continue to use them as paperweights, booster seats, kindling and conversation starters to aid in engaging our sullen teens and tweens.

A little over a year ago, I asked how long it would be until we had a full, professional quality feature film filmed entirely with smartphones. This one doesn't completely qualify, but it is quite interesting. Ross Pruden points our attention to the story of This Is Not A Film, the documentary from widely respected Iranian filmmaker Jafar Panahi. The story behind this film is pretty crazy. Basically, Panahi was arrested and given a six-year sentence in prison, while also being barred from making films for 20 years. While he appealed the sentence, he was apparently able to remain in his Tehran apartment under house arrest... and decided to document his life as he dealt with this situation by filming it, often using iPhones to capture scenes (though not entirely). The film has been shown at various film festivals, but is hitting US theaters starting February 29th, and the trailer recently came out: Apparently the film itself was smuggled out of Iran to Cannes by putting it on a USB key, and then baking that USB key into a cake that was shipped out of the country. In all the news coverage of this film, I haven't seen anything about how the Iranian government reacted to this film, which they must know about by now.

Either way, there's something of a statement being made here about the power of smartphone cameras these days. It really was just a few years ago that the idea of mixing cameras with phones was widely panned as a dumb idea. And now they're helping internationally renowned filmmakers who are being censored and persecuted to keep making their art. It also says something about the need for some creators to keep making their art, no matter what the challenges to doing so. That's really amazing.

Also, it starts to lead you down the path to rethinking questions about censorship and free speech limitations. Obviously, banning someone from making a film is a form of censorship and an infringement on free speech rights. And, of course, Iran does not have a particularly good reputation on free speech issues. But technology changes things. When "making a film" is as easy as clicking a button on the phone you carry at all times, it changes the equation. "Making a film" is no longer "making a film." It's just something you and anyone else can do at any time. When that happens, the very concept of banning someone from making a film... just seems silly.

While we had one court say that harassing speech on Twitter was protected by the First Amendment, another court felt quite differently about harassing speech on a blog. As both Eric Goldman and Kash Hill have discussed, a court ordered Andrew John Arlotta to delete his entire harassing blog about his ex-girlfriend, and also basically to not do anything that he intends to upset her. Goldman highlights a few of the problems of this, in rather understated tones:

The court rejected a constitutional challenge to the HRO, basically treating harassing speech as a class of content categorically excluded from First Amendment protection. I'm not sure about this approach. It seems like this was more appropriately treated as a situation where speech is also conduct, and the HRO (harassment restraining order) regulated his conduct. I believe treating harassing speech as outside the First Amendment invites more mischief than playing with the speech/conduct divide.

I think Goldman underplays the problems here. I think we all agree that what Arlotta did was ridiculous, creepy and vindictive. But that doesn't mean it's not protected under the First Amendment. As Goldman notes, there were ways to stop Arlotta's conduct without taking away his First Amendment rights and carving out an exception to the First Amendment for being a jerk. I think this ruling is really questionable.

Goldman also highlights the consequences of such a bizarre and comprehensive ruling against Arlotta:

This ruling leaves open a key question. Even under the prior HRO, could Arlotta have blogged about his dealings with Johnson if he did not try to bring it to the attention of others? After all, if his statements are true and not based on restricted information, Arlotta should be able to tell his story. Then again, a blog will show up in the search results, so a blog could be a passive-aggressive way of getting back to Johnson, and just as (if not more) effective as affirmatively reaching out to call attention to the blog. So try a different hypothetical: could Arlotta write and publish a book telling his story? I think the answer should be yes, so long as he lacked malicious intent (recall the initial HRO restricted him from intending to hurt Johnson's privacy).

Of course, I'm not sure a judge would see it that way. That's part of the problem with this ruling. Clearly, the court was troubled by what Arlotta did, and found a way to stop him. So if he were to do as Goldman describes above, I wouldn't be surprised to see them merely assume that it was more of the same, and continue to block his speech. And that brings up one of the clear problems of the ruling. Could you really be barred completely from publicly speaking about an ex because you once harassed her?

We've been discussing lately the importance of allowing for pseudonymity, rather than requiring real names, and Todd McDermid points us to another reason why pseudonyms can be useful online. Apparently a guy named Rene Najera has been blogging and tweeting about epidemiology while at the same time being employed by the Maryland Department of Health and Mental Hygiene. Apparently, he was quite good at it, and many folks found his posts and tweets to be useful and informative.

However, he recently got into a Twitter discussion in which he defended vaccinations. I recognize this is a touchy subject to some, but only to those who don't pay attention to what the science actually says (or those who ignore that the main report anti-vaccination folks use was later found to be fraudulent). Given the serious health problems created by parents now refusing to vaccinate their children due to clueless anti-scientific fear-mongering, you would think that a government Department of Health would be thrilled that one of its employees was defending vaccinations and talking back to someone who was arguing against vaccines.

Instead, however, it appears that after the guy he was arguing with sent a barrage of emails to higher ups at the agency, Najera was told to stop "all social networking activity related to public health."
Now, it seems there are two issues here. One, as the article points out, this shows yet another situation where the ability to blog/tweet/etc. pseudonymously might help. If Najera was doing that, the person he was debating with wouldn't have been able to bombard his employer. That said, neither platfrom that Najera seemed to mainly use (Twitter and Blogger) does require real names, so he could have gotten away with being pseudonymous on those platforms (and perhaps will come back some other time doing so).

I think the bigger issue is that a Department of Health would reprimand him for such actions and tell him to stop speaking about public health issues. Does the Department of Health really prefer that the actual experts stay out of these discussions, leaving them to those who aren't informed?