And while many people are cheering on California's new law, Eric Goldman points out that we should be wary of the potential for significant unintended consequences. He worries about the broad definitions of what's really covered (hint: it goes beyond just "social media" even though that's all anyone's discussing). More importantly, he worries about the line between "personal" and "professional" accounts. Obviously, if you are managing, say, your employer's Twitter account, it's reasonable for them to have your password. And if it's just your own personal account, it's not. But... that assumes that those two categories are mutually exclusive and distinct, when the reality is they're often not. People use personal accounts for work related things all the time. It wasn't that long ago that we wrote about a dispute concerning who owned a LinkedIn account -- the company or the employee -- when many of the contacts were due to the employment situation. It's not so easy, and Goldman sees trouble ahead:
Thus, the law assumes that social media accounts have only two states: personal or not-personal. Sadly, that’s completely contrary to the cases I’m seeing in court right now. Instead, social media accounts fit along a continuum where the endpoints are (1) completely personal, and (2) completely business-related–but many employees’ social media accounts (narrowly construed, ignoring the statutory overbreadth problem) fit somewhere in between those two endpoints. Indeed, employers and employees routinely disagree about whether or not a social media account was personal or business-related. See, e.g., Insynq v. Mann, Eagle v. Sawabeh, Maremont v. SF Design Group, Kremer v. Tea Party Patriots, and PhoneDog v. Kravitz.
And, he points out, since it's important for companies to have the passwords to "corporate" accounts, while the law makes it illegal to ask for them on "personal" accounts, there's clearly going to be conflict when accounts fall somewhere into that blurry middle, as many of them do:
Putting the two concepts together, employers should require that employees provide them with login credentials for social media accounts relating to their business; but the law makes it illegal for employers to ask for login credentials to “personal” accounts. This puts employers in an obvious squeeze: employers may not know which employee accounts are purely personal and which are a mix of personal and business-related; the statute doesn’t expressly allow employers to access mixed account; and the statute doesn’t give employers a defense if they demand the login credentials because they reasonably but mistakenly thought the account was all or partially business-related. Courts will likely have to create common law exclusions for employers trying to get access to mixed accounts, but only after much angst, confusion and costly–and avoidable–litigation.
So while the intent may be good, the actual law may have some significant problems and costs associated with it. And for what? Was this really that big of a problem? Yes, there were some stories of it happening, but there was no indication that it was really that common. On top of that, in many cases, individuals could handle the situation on their own, without needing the law to back them up.
I knew I belonged to the public and to the world, not because I was talented or even beautiful, but because I had never belonged to anything or anyone else.
But... that's not quite how the lawyers representing her estate felt about things. A few years ago, we wrote about how her estate had lost a legal fight trying to claim publicity rights in photos of Monroe. The case involved the question of publicity rights after death. As we recently discussed, some states allow publicity rights to live on after death, others do not. When Monroe died, the various states that could "claim" her (NY, California and Indiana) did not have laws that allowed publicity rights to live on after death. So that should have been the end of it.
But... California (due to pressure from plenty of folks in Hollywood) eventually changed its law to allow posthumous publicity rights. And so, Monroe's estate started suing. There was just one (major) problem. When Monroe had died, her estate had gone to great lengths to insist (no, really!) that she did not live in California, but in New York. Why? Because California had a massive estate tax, so the estate would have had to pay that if it was determined that she resided in California. They successfully convinced the world that she was a NY resident, and so they got out of paying California's estate tax.
However, when this issue of publicity rights showed up 40 years later, the estate suddenly changed its story, and wanted to insist that she really lived in California, but just for the purpose of publicity rights. As noted above, the courts didn't buy it -- in part due to the earlier arguments, but also because at the time of death it wouldn't have mattered, and the publicity rights had gone away. That resulted in the California state legislature passing a law (led by a state Senator, Sheila Kuehl, who had been a child actor, naturally) to say that dead celebrities could reclaim their publicity rights if they had died before posthumous publicity rights were allowed. Naturally, Senator Kuehl attached this important legal change to a bill that was originally about stem cell research. You see the connection.
Because of that law, the courts reviewed the case and still said: sorry, but Monroe did not live in California according to Monroe's own estate's earlier arguments. That ruling was appealed, and now the appeals court has rejected the estate's attempt to posthumously move Monroe once again, saying that the arguments made decades ago that she resided in New York bar her estate from trying to change those facts to suit their wallets today. The court more or less laughs at the argument that Monroe's lawyer was somehow mistaken or uninformed when originally claiming Monroe was a New York resident, and even suggests that such claims may not just be mistakes, but may be willful misrepresentations to the court:
Monroe LLC also suggests that it has
always believed that Monroe died domiciled in California,
and that Frosch was simply mistaken in his belief and representations
because he did not have access to some documents
that allegedly contradict the materials and declarations he
relied upon. This assertion by Monroe LLC is dubious, at
best. Frosch had contemporaneous access to people knowledgeable
about Monroe’s intentions, including Ralph L. Roberts,
her close friend and confidant and reportedly the last
person to see her alive. To the extent that there was any
debate, Frosch represented, with significant evidentiary support,
that Monroe’s intention was to remain domiciled in New
York, though she temporarily relocated to California for a
movie shoot. Another possibility, for which we have insufficient
evidence, is that Monroe LLC’s present position on
Monroe’s domicile is a knowing misrepresentation, or tantamount
to a fraud on the court. In light of this irreconcilable
conflict between diametrically opposed representations about
Monroe’s intended domicile, the district court’s determination
that Frosch intentionally misled the courts is supported by
“inferences that may be drawn from the facts in the record”
and is therefore not an abuse of discretion.
The court is pretty clear, and at times harsh. Not only did it use the quote above to note that her persona now is, in fact, part of the public, but it also used another quote of hers to describe her estate's questionable claims in the case:
This is a textbook case for applying judicial estoppel.
Monroe’s representatives took one position on Monroe’s
domicile at death for forty years, and then changed their position
when it was to their great financial advantage; an advantage
they secured years after Monroe’s death by convincing
the California legislature to create rights that did not exist
when Monroe died. Marilyn Monroe is often quoted as saying,
“If you’re going to be two-faced, at least make one of
them pretty." There is nothing pretty in Monroe LLC’s
about-face on the issue of domicile. Monroe LLC is judicially
estopped from taking the litigation position that Monroe died
domiciled in California. Our conclusion in this regard is
guided by the need to preserve the dignity of judicial proceedings
that have taken place over the last forty years and to discourage
litigants from “playing fast and loose with the
Apparently, California broadcasts many key state legislature hearings, just like many legislative bodies these days. However, right before a hearing on some key ballot initiatives, apparently California Senate President pro tem Darrell Steinberg ordered that the feed be turned off for the meeting. Critics noted that Steinberg was vigorously supporting one of the ballot measures, which involves sales and income tax issues. After complaining about cutting off the feed, Steinberg and his staff basically admitted that they did it because they don't want footage to be used against them in campaign commercials by opponents:
Steinberg spokesman, Rhys Williams justified the disruption of CalChannel service this way: 'It was inappropriate to provide legislative resources to promote the ballot measure campaigns of either side, and in particular to make those public-funded resources easily available for exploitation in political TV commercials.'"
In other words, because the public debate on these issues might lead others to make campaign commercials, it should not be transparent or shared at all.
The committee's own chairperson, Lois Wolk, was apparently horrified that the video was cut off, noting that "she had begun the hearing with a statement expressing hope that it would help voters reach a reasoned decision on the four measures." Oops.
Steinberg, to his credit has now apologized and admitted that: "It wasn't a good reason... When you mess up, you mess up. I'm sorry and it won't happen again." At least he recognizes that, but the initial move was still pretty blatant and raises significant questions about his motivations in cutting off this most basic form of governmental transparency.
California, a state that has had budget problems for years, apparently bet approximately 2% of its budget on the idea that Facebook's stock would remain at or above $35 and that a bunch of insiders would sell, racking up tax revenue for the state. However, with the stock continuing to drop, the state's fiscal analyst is now warning that perhaps over a billion dollars in expected tax revenue may be at risk. The state's budget is $91.3 billion, and that was built on the assumption that a successful Facebook IPO and insider sales (at an average price of $35) would bring in $1.9 billion. Of course, the stock has been in decline since its IPO, dropping below $20, hence the concern.
What I love about the linked article, however, is that the Bloomberg reporter sought to get a comment from Facebook over this (the company declined). What did he think Facebook would have to say? That it would try harder? That it felt bad that the state overestimated its stock price just about as much as the company itself did? I would imagine that budget overruns by the state due to Facebook's falling stock are pretty far down the list of priorities for Mark Zuckerberg these days...
A few years ago, California outlawed texting while driving. On the whole, this is one of those things that certainly seems like a good idea. I'm still amazed that anyone -- law or no law -- thinks that texting while driving is a reasonable thing to do. It's a clear death wish. That said, like many laws, there appear to be unintended consequences. A few studies have suggested that states that put in place anti-texting while driving laws actually saw an increase in accidents compared to nearby states that had no such ban. How does that make sense? Well, it's because the law doesn't seem to actually get everyone to stop texting while driving. Instead, what it does is make them hide what they're doing, which generally means putting it down in their lap. Before that, they could hold it up and still see the road, even if they weren't paying close enough attention to it.
None of this is defending the ridiculously dangerous practice of texting while driving, but merely acknowledging that the law intended to make the roads safer could actually do the opposite.
With all that said, it's interesting to see that California quietly legalized some forms of texting while driving last week with very little fanfare. Basically, it allows totally hands-free texting -- such as dictating messages via a bluetooth headset or a car service like OnStar. Of course, unsurprisingly when dealing with lawmakers and lawmaking, there's a lot of confusion over the new rules -- with some wondering if it meant that something like Siri was now legal while driving. That resulted in the following amusing passage in the SJ Merc article about this, in which the staff of the sponsor of the bill is left to admit that no one there has an iPhone, so they didn't even really think about Siri:
On Friday, after much head-scratching and acknowledging nobody in Miller's office owns a Siri-equipped iPhone 4S, the assemblyman's aides concluded it will still be illegal to use your actual phone to text behind the wheel -- even by speaking the message directly into Siri.
The California Highway Patrol confirms that just the act of turning on the phone or selecting the phone's hands-free text app, like pushing the Siri button or Google apps on Android phones, is enough to warrant flashing lights in your rearview mirror and a $100-plus ticket. The same thing goes for using your phone to read texts.
"The phone can't be in your hands," said CHP spokeswoman Jaime Coffee. "Hands-free is the key."
Either way, this seems to suggest, once again, the difficulty in regulating any particular technology in a rapidly changing technology market. I still don't understand why we don't just do the simple thing: make dangerous and distracted driving illegal, and just teach people the human consequences of doing something moronic like texting while driving.
Earlier this morning we wrote about Charles Carreon suing Matthew Inman, IndieGoGo, the National Wildlife Federation and the American Cancer Society. At that time, all anyone had was the summary of the lawsuit as written by Courthouse News Service. Now, Carreon has posted the filing to his own website (with portions redacted) and the full version is now available via PACER. I've attached the officially filed version below. Rather than reveal new theories that we had missed in our original analysis, it would appear that our initial thoughts were dead on. This case is just begging to be anti-SLAPPed out of existence, in which case Carreon may find himself on the hook for significant legal fees.
When I was writing about the original case, I went looking through California's regulations on charities, and couldn't find anything that would impact Inman or IndieGoGo and all I came across was this law from this page on the California Attorney's General website. But I couldn't see how that specifically applied to Inman or IndieGoGo, since it seemed to be focused (a) on charities themselves or (b) on professional fundraisers (i.e., people hired to fundraise on a charity's behalf). It did not seem to apply to people who just tried to raise money which they promised to donate to a charity. However, that is the law that Carreon is relying on. Carreon seems to try to twist the definition of a "commercial fundraiser" to make it apply to Inman and IndieGoGo, but it's a pretty massive stretch. Inman isn't doing this "for compensation," so the law doesn't seem to apply to him. IndieGoGo is just the platform, but isn't doing the soliciting or directly touching the funds. The law is designed for an entirely different purpose.
And even if, somehow, a court actually believes that this law applies here, you might wonder how it's possible that Carreon has any standing to sue whatsoever. The fundraiser has nothing to do with him (it was about Funnyjunk, but remember that Carreon is suing on his own behalf, not Funnyjunk's.). Carreon appears to just be suing because he's pissed off. Except, that Carreon thinks he found a loophole. He donated to the campaign himself in order to create standing:
Plaintiff is a contributor to the Bear Love campaign, and made his contribution with the intent to benefit the purposes of the NWF and the ACS. Plaintiff is acting on his own behalf and to protect the rights of all other contributors to the Bear Love campaign to have their reasonable expectation that 100% of the money they contributed would go to a charitable purpose. Plaintiff opposes the payment of any funds collected from the Bear Love campaign to Indiegogo, on the grounds that the contract between Indiegogo and Inman is an illegal contract that violates the Act, and its enforcement may be enjoined. Plaintiff opposes the payment of any funds to Inman because he is not a registered commercial fundraiser, because he failed to enter into a written contract with the Charitable Organization defendants, because the Bear Love campaign utilized false and deceptive statements and insinuations of bestiality on the part of Plaintiff and his client’s “mother,” all of which tends to bring the Charitable Defendants and the institution of public giving into disrepute.
Yeah. Once again, Carreon contributed to Inman's campaign for what appears to be the sole reason of using that as a way to get standing to sue. I'm somewhat stunned.
Also, how can he possibly blame the charities? Well, Carreon's lawsuit fails in that it never actually states a claim against the charities. Seriously. At one point in the explanation of the lawsuit, he does state the following, but never actually includes the charities in any of the actual claims:
Although the Charitable Organization defendants have notified by Plaintiff in writing about the fact that the “Bear Love” campaign alleged infra is being conducted by Inman and Indiegogo in violation of the Act, and that the campaign is being conducted in a manner that could cause public disparagement of the Charitable Organization defendants’s good name and good will, neither the ACS or the NWF have acted to disavow their association with the Bear Love campaign, thus lending their tacit approval to the use of their names to the Bear Love campaign.
Again, just for emphasis, I'll point out that even with this paragraph, Carreon fails to name either charity with any of the actual claims in the lawsuit. He does include them in part of the claim, by stating that they "have failed to perform their statutory duty to exercise authority over the Bear Love campaign," but still fails to directly assert the claim against them. Even if he somehow figured out a way to work them into one of the claims, this particular legal theory of not disavowing "their association" with Inman's campaign leading to "tacit approval" is pretty ridiculous as well, and not something I could see standing up in court.
Meanwhile, Carreon's theory that Inman "disparages the image of charitable fundraising" again seems to stretch all kinds of definitions and understanding of the internet. Basically, he relies on the fact that Inman likes to mock people he doesn't like. But that's entirely unrelated to the issues at hand. Furthermore, despite Inman and Inman's lawyer explaining (in great detail) to Carreon, earlier, that Inman has an ASCII pterodactyl on all pages of The Oatmeal's source code, Carreon spends an inordinate amount of space talking about how awful this is.
Inman has announced his vindictive response to his real and imagined enemies by posting, within the source code of all of the webpages on his main website, www.theoatmeal.com, the following image and text, depicting himself as a pterodactyl that will “ptero-you a new asshole.” A screencapture of the core of the source-code appears as follows:
Following the link to http://pterodactyl.me leads the Internet user to a page on TheOatmeal.com where a video created by Inman and Sarah Donner depicts Inman, in his character as a carnivorous, prehistoric flying reptile that first rips the intestines out of a man's anus, then flogs him with his entrails, then steals a pineapple from a boy, tears his head off, flings it a girl and knocks here head off, then grinds up the girl’s head up in a wood-chipper, blends it with the pineapple, and drinks the grisly cocktail
The filing then shows screenshots from the video in question, which we'll just embed here for your viewing pleasure:
Carreon tries to claim that these images actually incite Inman's followers into action:
Inman’s followers are by and large with technologically savvy young people eager to follow the
latest trend, who embrace Inman’s brutal ideology of “tearing you a new asshole.”
Seriously? Carreon is literally arguing that fans of a silly comic with cartoonishly ridiculous violence leads them to "embrace" this "brutal ideology?" Carreon really ought to spend more time online. Carreon repeatedly makes incredibly weak connections between Inman's cartoons, his online persona and the later hatred directed his way, but without any actual evidence.
Later in the lawsuit, Carreon again claims that Inman's statement that Funnyjunk "stole" images is "false and misleading." Whether or not that's true, it's irrelevant here. Funnyjunk is not a plaintiff in the lawsuit. He also goes off on Inman for "fighting
words, and incitements to commit cybervandalism, none of which are entitled to constitutional
protection." Neither of those make sense. It's nearly impossible to see how Inman's cartoons, as sophomoric as they might be, qualify under the standard legal definition of "fighting words" or any kind of incitement to violence. In fact, Inman has made no references inciting his audience to do anything other than give money to charities (which most people would consider a good thing).
Moving on... we've got the trademark and publicity rights claim. As expected, Carreon is asserting that various actions violate the trademark on his name and his publicity rights. The key is that someone set up a fake Twitter account in his name and tweeted various statements that might make Carreon look silly. Of course, reading some of the tweets, it seems rather obvious that the account is fake. For example, one of them talks about "backtracing" Inman's IP -- a rather obvious reference to the famous ya dun goofed internet meme. Also, as he had suggested in an interview on Friday, Carreon makes interesting leaps of logic in suggesting that Inman himself may have set up the fake account.
Then, finally, we have the "inciting and committing cybervandalism in the nature of trespass to chattels, false personation and identity theft." Here, he claims that the fact that his email address was made public was part of that incitement, claiming that he never made it public:
As noted above, Doe1 or Inman proliferated Plaintiff’s email address via a fake tweet made by “@Charles_Carreon.com.” Plaintiff had not posted the email@example.com email address anywhere on the Internet except where required by law and Internet regulations. (The email address appears on legal papers in PACER filings in cases where required by the rules of this and other U.S. District Courts; however, these filings are viewable only by PACER users. The email address was also used in the Whois registration database for various websites Plaintiff has registered for his benefit, and as by the authorized registrant/agent of various legal clients.) Inman or persons incited by Inman also proliferated the email address and Plaintiff’s home address on social networking websites, again for the malicious purpose of enabling cybervandalism.
Except... court filings are not only viewable to those with a PACER account. Filings with the court, if not under seal, are considered public documents and are often available from a variety of sources, including the Internet Archive and other places as well. Separately, if he didn't use an anonymizer, the whois info that includes his email address is public info. Furthermore, his address is available elsewhere online as well, including (um...) both the websites for the State Bar of California and the State Bar of Oregon. Oh, and the email address is also clearly stated in the version of the legal filing that Carreon posted to his own website. While he redacted his email address in the header, he did not within the text of the complaint. In other words, that address was widely available to the public already.
His second claim of cybervandalism was that someone tried to reset the password on his webhosting account:
On June 13, 2012, at 9:28 p.m., either Inman or one of the persons named as Does 1 – 100 engaged in the act of trespass to chattels, cracking the password on Plaintiff’s website at http://www.charlescarreon.com and requesting to reset the password. Fortunately, the intrusion discovered instantly by Plaintiff who was sitting looking at his computer screen when he received an email from the website software system, and was able to retain control of the website by immediately changing the password using the hyperlink in the email.
First of all, merely requesting a reset password is not "cracking the password." It's requesting a new password, which the user would not be able to act upon unless they had access to Carreon's email (and there is no indication that that happened). In fact, it appears that the password reset system worked as designed, in that Carreon was warned that someone wanted to reset the password. And, actually, the fact that Carreon admits to "using the hyperlink in the email" suggests that that could have been the real hack attempt. You should never change your password using a hyperlink sent to you in an email. You should always go directly to the site yourself and login and make the change. Normally, if you receive one of those reset emails and haven't tried to reset your password, you're supposed to ignore it so that the password doesn't get reset. Clicking on the link and changing a password that way makes one susceptible to phishing attacks.
Finally, Carreon notes that some idiots online have signed his email account up for various spam emails/newsletters. If true, that's pretty stupid on whoever signed him up for those kinds of things, and people really shouldn't do that. But claiming that's "cybervandalism" or anything that can or should be pinned on Inman (again, whose target was Funnyjunk, not Carreon) seems ridiculous in the extreme.
Remember how we were just talking about Senator Chris Coons, and the fact that maybe (just maybe) he was realizing that pushing for ridiculously over-aggressive "anti-piracy" laws without understanding the details was a bad idea? Yeah, apparently that lesson didn't sink in very well. On Wednesday, Coons appeared at an event put on by the US Chamber of Commerce (the main lobbyists pushing for PIPA and SOPA), in which he called for new SOPA/PIPA-like laws and cheered on some ridiculously bogus "new research" from the US CoC claiming that "IP Creates Jobs for America."
The "research" uses the same bogus and debunked methodology that the US Chamber's "Global IP Center" has been championing for a while. First, you define what industries are considered "IP-intensive." You make this as broad as possible, so you include (for example) the tech industry (they get patents!), even though they're among the ones fighting to stop SOPA/PIPA-like laws, and also fighting to reform patent laws that have restricted innovation. Great. Then you list out all the jobs in those industries. And then you falsely claim that those are jobs that were "created by IP laws."
Except almost none of that is accurate. But it is a neat (though shameless) political scam to count those who are opposed to these kinds of laws and pretend they're in favor of them. Shame on Coons for falling for such blatant propaganda. Perhaps he should talk to his son, who explained to him why the bills he supported earlier this year would cause significant problems for the internet.
Meanwhile, as a part of this program, it appears that they're releasing totally misleading and laughable state-by-state profiles of how many "jobs" were "created" by IP. Here's California's (warning: pdf). It claims that IP supports 55% of the jobs in California's private sector -- and certainly suggests that those jobs wouldn't exist if we didn't have stronger IP laws (what with the big banner right above it declaring "IP Creates Jobs for California."
Yet the data shows no such thing. At no point do they even try to show a causal relationship between more draconian IP laws and more jobs. Because they know they can't. Instead, they use this bogus lumping together of any job that sorta kinda touches on IP laws and the massively ludicrous suggestion that those jobs only exist because of IP. I can understand why the Chamber of Commerce is promoting such a laughable study -- but it's a shame that a politician who claims to know better would fall for it.
You would think that it would be in the mobile operators' best interest to protect their own customers' privacy and to stand up for their basic rights. You would think, but apparently you'd be wrong. It appears that CTIA -- the mobile operators' industry association -- is opposing an effort in California to require mobile operators to require a warrant before disclosing personal info. The bill also requires some basic reporting requirements for the companies, having them say how often info has been disclosed (hardly onerous info to track). Basically, the law asks that the mobile operators respect the 4th Amendment when dealing with law enforcement -- something that the federal government has been successfully chipping away at for years.
But the CTIA is against all of this (pdf), claiming that it would be "confusing" for mobile operators.
... the wireless industry opposes SB 1434 as it could create greater confusion for wireless providers when responding to legitimate law enforcement requests
The crux of the "confusion" apparently is that the definitions in the bill are somewhat broader than what the industry says is standard, and they're afraid that this means "It could place providers in the position of
requiring warrants for all law enforcement requests." I'm struggling to see what the problem is here. What's wrong with requiring warrants?
The letter also fails to explain why the reporting requirements would be so "burdensome," other than the claim that providers already "are working day and night to assist law enforcement to ensure the public’s safety and to save
lives." So, if I read this right, they're arguing that they're already so busy responding to law enforcement that telling users that your personal data is being handed over to the government willy nilly is, you know, too much effort.
The ACLU is calling out the industry for this move -- noting that it seems to have no problem spending all these resources passing on all of our info -- why can't it spend a little defending its subscribers' rights too?
California is supposed to vote on this bill shortly. Hopefully, the state sees through these baseless claims from CTIA.
Charlie O'Donnell has an excellent post noting just how ridiculous it is that New York's two Senators, Chuck Schumer and Kirsten Gillibrand, both support PIPA. He notes that NY has become an up-and-coming tech hub these days. Indeed, over the last decade, NYC has emerged as the widely agreed upon "second" hub of tech startups after SF/Silicon Valley. However, having both of NY's Senators support PIPA, despite near universal condemnation from the tech sector is an embarrassment:
It’s an embarrassment, frankly, to our tech community. If you support this bill, you are not supportive of us. All of our local politicians--our Senators, Mayor Bloomberg... and other policymakers need to be fighting this.
Chuck Schumer and Kristin Gillibrand need to switch their positions immediately on these bills, which should really aptly be named the “Stop Innovation on the Internet” bill. If NYC is going to fulfill its potential as an innovation hub, we can't have our senators supporting SOPA. They’re on the wrong side of history here, and they don’t understand enough about the internet and how it came to be to see why.
Of course, it's even worse than that for tech hubs. Here in Silicon Valley... we also have both of our Senators supporting the bill. Senators Feinstein and Boxer are both supporters, with Feinstein being so incredibly out of touch, she doesn't even realize that there are complaints about the bill.
This is a really sad statement on both politics and the nature of innovation in America today. For all the talk politicians say about how they're in favor of creating jobs, and despite multiple studies showing that startups are the ones who actually create the jobs... when it comes time to figure out actual policy positions to take, these Senators "follow the money" and support Hollywood's position, because Hollywood funds their campaigns. While perhaps you can make the claim that Feinstein and Boxer represent both Silicon Valley and Hollywood -- the fact that all four of these Senators support an anti-innovation, anti-tech, anti-jobs bill like PIPA is a huge travesty.
In the past we've talked about the horrors of libel tourism -- mostly involving the UK. That's where a plaintiff living outside the UK sues a defendant also outside the UK for defamation... in the UK. The reasoning is that the UK's defamation laws are especially draconian and harsh on defendants. There have been efforts to change that and the US government was supposedly so offended by this practice that it passed the SPEECH Act a year and a half ago to make it clear that Americans wouldn't be subject to such libel tourism rulings.
But is the US now becoming a home to copyright tourism lawsuits just as bad as the UK's libel tourism efforts?
Eric Goldman points us to a bizarre default judgment ruling out of a district court in Northern California involving a bunch of Korean entertainment companies suing a guy who lives in Australia. The Korean companies claim that the guy, Kenny Tran, infringed on their copyrights by distributing their works. As the court describes it:
Defendant uses his websites to disseminate to internet users content, in the form of both
music and accompanying artwork, that has been unlawfully copied.... To listen to or
download an infringing copy of a work, the user clicks on a link next to an image of the
copyrighted album cover.... The user is then directed to a third-party website where
the user may download the album that was uploaded onto the third-party website by Plaintiff.... Users are able to download unauthorized copies of the DFSB Plaintiffs' copyrighted
material without Plaintiffs’ permission.
If the allegations are true, then it appears that Tran has, in fact, violated DFSB's copyrights. But the big issue that doesn't make any sense at all: why is this in a US court? Again, the plaintiffs are in South Korea. The defendant is in Australia. The music in question is Korean pop music. There's simply no reason that this is in a US court, and it seems like the court should have just tossed it out on jurisdiction issues. Instead, it goes forward and issues a default judgment against Tran, who, one would imagine, had no reason to travel from Australia to the US to deal with this.
So how does the court defend California as a reasonable jurisdiction? It seems to come down to the fact that Tran uses Facebook, Twitter and YouTube... and all three are California companies.
Moreover, it appears as though Defendant has specifically
used several California companies to further his scheme of perpetrating illegal downloads. Tran
uses California companies Facebook, Twitter, and YouTube to promote the websites he operates,
and to allow users access to the pirated copies of the copyrighted music and artwork. Additionally,
it appears as though Defendant uses a privacy service located in California to shield his identity.... In light of the nature of the websites run by Defendant, it appears that Defendant’s
activities are expressly aimed at California.
That seems like a very broad definition of targeting California, and it means that users of a ton of popular online services that can be used to break the law are now subject to California jurisdiction, no matter where they are in the world. That seems extremely questionable, and open to widespread abuse.
Separately, the court again goes a little wacky in arguing that Tran knew that his activities would "cause harm in California" because he's using California companies:
DFSB and the other plaintiffs, however, are not
residents of California. Nonetheless, Defendant likely knew that his activities would cause harm in
California. Tran relied on several California companies to further his scheme of providing
copyrighted music to a world-wide audience of users. Additionally, given the evidence provided
by Plaintiffs of the reach of Defendant’s activities, Tran likely knew that harm – in the form of
distribution and download of copyright protected material – would be suffered in the forum state.
I don't see how this makes any sense at all. If the "harm" was done to the copyright holders, what does it matter where Facebook, Twitter and YouTube are located. Tran wasn't targeting "harm" at any of those companies. The court also later claims that it's "not clear" if the plaintiffs could bring similar suits in South Korea or Australia. Why? Again, this simply makes no sense.
It seems like with a ruling like this, plenty of others could start dragging pretty much anyone who may infringe on their works to court in California. This seems ripe for serious "copyright tourism" cases. Separately, it raises questions about the claims from SOPA supporters that copyright holders can't go after "foreign" infringers. Apparently a district court in Northern California disagrees...
Jay: Hmmm... Gonna have to hack my PSP... silverscarcat: I need a new battery for my PSP. :( It keeps shutting off if it's unplugged for more than 2-3 minutes, even on a full charge. Mike Masnick: green bars are back, and hopefully functioning better than before. :) silverscarcat: Oh look, AJ's having a cow and the internet tough guy is trying to be a stereotypical high school bully. *Rolls eyes* Hey, Mike, I know it's not in your nature to ban someone, but, damn, something needs to be done about this sometimes I think. Rikuo: unfortunately, nothing can be done. IP address block? Useless since either AJ is on a dynamic IP or he's on a static but using someone else's equipment. Username block? That would only add fuel to the "CENSORSHP" fire silverscarcat: Well, I think I'm going to leave for the day. That troll that plays the internet tough guy really should get laid, I think. It might help him think straight. Rikuo: holy fucking shit...I want to be this man http://arstechnica.com/information-technology/2013/05/fios-customer-discovers-the-limits-of-unlimited-data-77-tb-in-month/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+arstechnica%2Findex+%28Ars+Technica+-+All+content%29 Warning - Home Server pornz on that link BentFranklin: in that article, where it describes his rack, what does 1u, 2u, 4u etc mean? Jeff: @Bent - 1U, 2U, 4U are units of measurement for server racks. http://en.wikipedia.org/wiki/Rack_unit Dark Helmet: Hell, I"m just a silly tech services sales guy and I knew that... yaga: DH you should have just stopped at silly. dennis deems: Holy Cow http://arstechnica.com/information-technology/2013/05/doctors-save-babys-life-with-3d-printed-tracheal-implant/ http://www.fairphone.com/ -- I wonder why they don't use kickstarter. does this make sense to anyone? is kickstarter not available in europe? Rikuo: There is for UK. You have to be a UK resident http://www.kickstarter.com/help/faq/creator+questions#GettStar of course that's just for the one company, called Kickstarter. There are other crowd-sourcing companies