Investigators, Reporters Close In On The Origins Of Those Fake Net Neutrality Comments

from the fake-plastic-support dept

As several Attorneys General and the FBI investigate who was behind the fake net neutrality comments that plagued the FCC website during the late 2017 repeal, reporters like Jason Prechtel and Gizmodo's Dell Cameron continue to slowly and methodically connect the dots. Last month, Cameron obtained leaked investigation data linking many of the bogus comments to several Trumpland-linked astroturfing and policy operations like "Free Our Internet," a bogus consumer-rights group specifically built by ex-Trump campaign staffer Christie-Lee McNally.

And this week, both Prechtel and Cameron leaned on FOIA data to discover that another sizeable chunk of the bogus comments were allegedly driven by both CQ Roll Call, a DC-based news and policy organization, and Center for Individual Freedom (CFIF), a "dark money" influence group with historical ties to defending tobacco companies:

"Founded in 1998, CFIF is a reportedly a dark-money group whose early roots lie in defending Big Tobacco, but which supported the repeal of net neutrality more recently and has campaigned aggressively against state laws requiring political groups like itself to disclose the sources of its funding. Along with CQ, the group is among the 14 entities subpoenaed by the New York attorney general last fall, as first reported by former BuzzFeed reporter Kevin Collier in October.

As late as last February, CFIF President Jeffrey Mazzella praised the FCC’s rollback of the Title II classification of broadband service underlying net neutrality in the Daily Caller, labeling the policy an “unprecedented power grab by the Obama administration,” which, he claimed, upended “two decades of bipartisan consensus for light-touch regulation of the internet sector."

You might recall that many of these efforts during the net neutrality involved hijacking the names of both dead and living people (like myself), and using them to post comments supporting the Pai FCC repeal during the FCC open comment period. Most of these folks (obviously in the case of deceased) had never even visited the FCC website, much less heard about net neutrality. In one instance, a bot was used to pluck names from a hacked database of some kind, posting bogus, supportive-but-fake comments, name by name, in perfect alphabetical order.

In short, several groups were created by DC policy shops to generate the illusion of public support for a net neutrality repeal poll after poll shows was strongly opposed by a bipartisan majority of Americans. Especially since repealing those rules opened the door to ISPs using their network power to erect additional anti-competitive barriers for video competitors, driving up costs for everybody in the internet ecosystem.

None of this stuff is new. Telecom and other industries have spent decades creating entirely bogus consumer groups to prop up bad policy. And when companies aren't busy having DC policy shops create fake groups, they can often be found co-opting existing groups; promising cash infusions in exchange for quid-pro-quo support for company policy positions. Countless government agency proceedings have been plagued by similar fake comment issues, suggesting this sort of stuff is a pretty common option on the menu of many K Street lobbying and policy shops.

The goal is always the same: create the illusion of broad support for tech policy that consumers and actual experts strongly oppose, usually with very good reason. While that itself isn't illegal (whether it should be is a good conversation to have if we ever want to fix the country's garbage lobbying rules), identity fraud clearly is.

Of course identifying the dubious constructs acting as intermediaries is one thing. Connecting those constructs to entrenched broadband providers like AT&T, Verizon, and Comcast is something else entirely. Telecom operators historically leave layers upon layers of deniability between themselves and such groups, and aren't usually dumb enough to put much of this work in writing. As such, whether the NY AG, FBI, and other investigators are able to document a real money trail to the obvious beneficiaries of these shenanigans will be interesting to watch.

Regardless of the outcome, there are more than a few DC policy outfits that aren't sleeping quite as well as they were this time two years ago. They've been engaging in this sort of behavior for years, but the extreme unpopularity of Ajit Pai's assault on net neutrality likely brought significantly more light and attention to the sleazy practice than they've historically grown accustomed to.

Filed Under: dark money, fake comments, fcc, foia, lobbying, net neutrality, transparency
Companies: center for individual freedom, cfif, cq roll call

European Journalists Point Out That Article 11 Will Enrich Publishers At The Expense Of Journalists

from the this-is-not-helping dept

Promoters of the EU destructive copyright directive keep pushing the bogus line that it is necessary to give money to "artists and journalists." Take, for example, MEP Axel Voss (the EU Parliament member in charge of all of this nonsense) and his press release touting the final text:

Internet platforms face incentives to pay for artists and journalists’ work used

Except, actual journalists in the EU are realizing exactly what many of us have been talking about for months: nothing in the Directive will lead to more money for journalists. Instead, at best, it might lead to more money for publishers (though, even that is suspect, given the utter failure of similar plans already in place in Spain and Germany). While Voss's announcement claims that "Journalists must get a share of any copyright-related revenue obtained by their publishing house," journalists are pointing out that the opposite is actually true.

The International Federation of Journalists, along with the European Federations of Journalists put out a statement noting that Article 11 "makes a mockery" of their rights and will only serve to help publishers strip the journalists of their own rights:

While the directive acknowledges an obligation for journalists and all authors of the works incorporated in a press publication to receive an "appropriate share" of the revenues press publishers receive for the use of their publications online, it enables publishers to avoid such requirements by relying on existing "contractual arrangements" and "laws on ownership".

Such moves could deny journalists any revenue arising from the re-use of their work online.

These discriminatory provisions and proposals contained in Article 11 and Recital 35 of the text dash any hopes that the Directive would support authors in the press sector in obtaining fair and proportionate remuneration for their work under this law or in future national legislation. 

Instead they boost the system whereby powerful publishers force employed journalists and freelancers alike to sign contracts giving up all their rights – thereby offering them a proportionate or appropriate share of nothing

In short, the final text pays lip service to the idea that publishers should pass on money to journalists, but also provides a massive loophole in that all the publishers need to do is write this requirement out of any contract and not have to worry about it.

It appears that this kind of tactic is found throughout Articles 11 and 13. The text says you don't have to use filters, but provides no workable alternative. The text says that memes are allowed, but never explains how a site can comply with the law without blocking all memes. The text of the directive basically pays lip service to all the complaints and obvious consequences, but rather than deal with the consequences, it just says "and don't let those consequences happen." This is no way to make policy.

Filed Under: article 11, copyright, eu, eu copyright directive, journalism, journalists

Japanese Academics Issue The Tamest 'Emergency' Statement Over Proposed Copyright Amendment

from the take-a-breath dept

Recently, we discussed a proposed change to Japanese copyright law that would make literally all downloading of copyrighted material a criminal matter, rather than a civil one. This change would be fairly bonkers for an entire host of reasons. It has the potential to clog up the criminal courts with the same kind of minor copyright infringement cases that clog up America's civil courts. It would put a decisive chill on the sharing culture that brought the internet to its current state to begin with. And it would further the culture of ownership and protectionism already far too common across the globe.

And, as states an "emergency statement" issued by nearly a hundred Japanese academics, it would possibly criminalize the kind of personal copying that facilitates research, education, and personal growth.

In an ‘Emergency Statement’ signed by 87 academics, researchers, lawyers, and other experts, the government is urged to think again about the scope of the proposed legislation. Under the current proposals, the group believes that private copying could be rendered illegal, even to the extent of outlawing screenshots for private use.

“We believe that the limitation on the right of reproduction for private use purposes has the function of restricting the freedom of information gathering in the private domain. It is a legal foundation that supports the intellectual and cultural activities of individuals, and even Japanese industry,” the signatories write.

The group believes that the proposed legislation has been rushed through in a very short time (five meetings in three months), without carefully considering the consequences. They want the authorities to think again, to protect the public interest.

It's as timid a statement as could be offered. And it's one that essentially amounts to, "Whoa, guys, take a breath, because you don't know what you're about to do." Given the timeline on which this has occurred, it's a wholly reasonable request as well, given the enormous stake the public has and its nearly complete lack of a seat at the legislative table. The chill on both expression and research that this cluster-bomb law would have can't really be overstated, as the kind of personal copying that it would seek to criminalize has become essential to both.

And, to be clear, these academics aren't exactly against enforcing copyright laws generally, either.

Importantly, those calling for the proposals to be considered more closely appear to be broadly in favor of tightening up the law to protect rightsholders. However, there are serious concerns over the potential for collateral damage when even snippets of text could be criminalized.

To that end, they suggest amendments to the proposals to mandate that it’s only a crime to reproduce copyright works when the act causes real financial damage to content owners, in the case of those who pirate whole movies, music, manga publications, books, and so on.

If you're looking for a silver lining in all of this, perhaps one can be found in this being a perfect litmus test for how government that bows to moneyed interests will react to the most modest of requests against those interests. In other words, the academics in this case are essentially asking that the law eventually do only 90% of what it originally aimed to do.

If the Japanese government can't be bothered to take even that request seriously, then perhaps the public should give up on it entirely.

Filed Under: copyright, criminal copyright, japan

Google Fesses Up To Hidden Microphone In Nest Home Security Platform

from the oh-and-by-the-way dept

Google this week found itself in luke warm water after Nest Secure users discovered that their home security system contained a "hidden" microphone the company had never publicly disclosed. The reveal came via a Google announcement sent to Nest customers earlier this month, informing them that their Nest Secure base stations (the motion detector and keypad at the heart of the system) would soon be updated to include Google Assistant functionality, essentially converting the hardware into another way to issue voice commands around the home:

"Starting today, we’re adding a feature to Nest Secure to do just that: the Google Assistant will be available on your Nest Guard, so you can ask it questions like, “Hey Google, do I need an umbrella today?” before you set your alarm and leave the house. Nest Guard is the brains of your Nest Secure; it contains a keypad and all the smarts that power the system. It’s usually placed in a spot with lots of traffic (like the front doorway) making it useful as you come and go."

On its face, this is certainly a welcome upgrade. Especially given the fact that we live in an era where the opposite often occurs, and companies have a habit of removing basic product functionality post sale, leaving you with less of a product, or in a few select instances no product at all. As such, that the Nest keypad for a home alarm system actually was upgraded to do more than users original thought is a good thing, at least superficially.

The problem: more privacy-conscious Nest owners weren't aware that the Nest home security base stations had a microphone in the first place, raising questions about whether Google was using the microphone for data collection and monetization in some capacity. Given the fact that we can't go more than twenty minutes before another major privacy scandal breaks, and the general regulatory and government response to most of these scandals has been a collective ¯\_(ツ)_/¯, the concerns are understandable.

Unlike some of its modern contemporaries, Google at least acknowledged that the company should have done a better job disclosing the microphone's existence simply by including it in the product hardware specs:

"On Tuesday, a Google representative told Business Insider the company had made an "error." "The on-device microphone was never intended to be a secret and should have been listed in the tech specs," the person said. "That was an error on our part."

And it does look like the company was also quick to update its product specs to make it clear the microphone exists moving forward. Still, Google should have been clearer from the start, and many went so far as to insist Google was lying to its customers:

I would probably note that if privacy is your top concern, a company like Google with a long history of hoovering up personal information probably shouldn't be your top home security choice in the first place. And there's a litany of other products in the home that deserve the same level of scrutiny. Americans are connecting poorly secured crap to their home networks at an alarming rate, from televisions (with microphones) that have paper mache grade security, to Barbie dolls that can be easily hacked and converted into covert listening devices.

While Google did the right thing here by coming clear, this episode also does a nice job illustrating the fact that whether we're talking about products getting better or worse, you don't really own the products you buy, and your agreement with the manufacturer in the firmware-update era can pivot on a dime, often with far less disclosure than we saw here, or none whatsoever.

Filed Under: google assistant, microphone, nest, privacy, specs, transparency
Companies: google

Facebook Ups Surveillance Of Users To Keep Tabs On People Who Don't Like Facebook

from the threat-level:-oversharing dept

Tech companies are becoming far more than useful repositories of third party records. They're becoming far more active in terms of surveillance, pivoting from platform providers to private sector Big Brothers, weaponizing their data collection capabilities to keep tabs on customers and users.

Facebook has decided to start scanning its platform for threats. Not threats against the many nations it serves or threats targeting other users, but rather threats against Facebook itself.

One of the tools Facebook uses to monitor threats is a "be on lookout" or "BOLO" list, which is updated approximately once a week. The list was created in 2008, an early employee in Facebook's physical security group told CNBC. It now contains hundreds of people, according to four former Facebook security employees who have left the company since 2016.

Facebook notifies its security professionals anytime a new person is added to the BOLO list, sending out a report that includes information about the person, such as their name, photo, their general location and a short description of why they were added.

[...]

Users who publicly threaten the company, its offices or employees — including posting threatening comments in response to posts from executives like CEO Mark Zuckerberg and COO Sheryl Sandberg — are often added to the list. These users are typically described as making "improper communication" or "threatening communication," according to former employees.

It's not that Facebook shouldn't be on the lookout for credible threats. It's that it's turned its platform into a surveillance tool for its in-house knockoff law enforcement agency. It's not clear whether the company is turning over its internal BOLO list to actual law enforcement, but if it is, that raises even more concerns. Certainly the company should be concerned about legitimate threats. But the company is flagging people simply for expressing their displeasure with Facebook in general.

While some users end up on the list after repeated appearances on company property or long email threats, others might find themselves on the BOLO list for saying something as simple as "F--- you, Mark," "F--- Facebook" or "I'm gonna go kick your a--," according to a former employee who worked with the executive protection team.

This undercuts Facebook's official statements about "rigorous reviews" of detected threats. So does the claim made by former employees that fired employees are automatically added to the BOLO list, despite nearly 100% of fired employees from all vocations posing no threat to their former employers.

And it goes further than simply flagging people (and, apparently, displaying their photos on monitors in the threat detection center). Facebook also tracks listed individuals using their smartphones, thanks to permissions granted to the Facebook app. The app comes pre-installed on most smartphones and most users are unaware how much data Facebook is gathering even when the app isn't in use.

Presumably, if some "F--- you, Mark" person gets too close to the Facebook campus, actual law enforcement is alerted. This sort of situation can only lead to positive outcomes. A person mildly displeased with Facebook's endless fuckery will be greeted by armed officers under the impression a credible threat has been made against the company. Good times.

More good times await. Facebook is also promising to "help" the suicidal by sending the cops after them.

Since 2011, Facebook has allowed users to flag potential suicidal content; reports prompted emails from Facebook urging the poster to call the National Suicide Prevention Lifeline. But starting in 2017, Facebook introduced bots to search out and report potential suicidal content. The bots report suspected cries for help to human moderators, who may then "work with first responders, such as police departments to send help," says CNN.

That's right: Facebook might call the cops on you because a bot thought you seemed sad. Facebook executives think that if a user exhibits signs of depression, it's up to Facebook—not the user's friends, family, or community—to intervene.

Rather than trying to track down friends or family, Facebook is turning this over to "first responders." In most cases, the first responder on the scene is going to be the local PD. Given how often police officers have helped talk people out of suicide by killing them, this effort by Facebook is going to result in more dead suicidal people than simply doing nothing.

I'm not saying Facebook should do nothing about threats against the company or to aid people with suicidal thoughts. But these efforts aren't going to make anything better and they're a misuse of Facebook's vast data collections and moderation efforts. There's an abuse of trust happening here and Facebook's efforts are so scattershot and half-assed they're going to cause a lot of collateral damage.

Filed Under: privacy, surveillance, threats
Companies: facebook

One Person's Unsettling Experience With A $20k Higbee Copyright Troll Demand Letter

from the calling-out-the-trolls dept

Last week we wrote about the questionable practices of copyright troll Mathew Higbee, based on thorough research from lawyer Paul Levy. As we noted in the post, we've heard from a few recipients of Higbee's questionable letters, and one has agreed to share his experience. This will be a two part series, with the first part, below, written by the recipient of the threat, web developer Daniel Quinn, and tomorrow, more information from the perspective of his lawyer, Carolyn Homer.

Hi. My name's Daniel Quinn. Off the bat, there's a few things you should know about me:

1. I'm a self-taught web designer.
2. I have a background in English literature, creative writing, and publishing.
3. I'm a huge scifi nerd.

I probably value those three things from most important to least important in reverse order.

One of my favorite fandoms of all time is The X-Files. As a kid, I wanted to grow up to be as dreamy and mysterious as Fox Mulder himself. Of course I now have a lifelong affection for conspiracy theories, cerebral redheads, and aliens. I just finished writing a science fiction novel that features all three elements.

Back when dial-up modems were a thing, I loved The X-Files so much I used to list my physical address on social media as Fox Mulder's fictional apartment in The X-Files: 2360 Hegal Place Apt #42 in Alexandria, VA 23242. To this day, my physical address on Facebook is listed as Mulder’s address—something I do intentionally to confuse Facebook’s greedy algorithm. (This will all become relevant later.)

I never expected that the show which brought me so much happiness in my youth would become responsible for grief and terror at age thirty-four.

In 2016, Fox released The X-Files season 10 and broke my heart with its retconning of the series' central mystery. I wrote a fraught review about it on my personal blog, as I am wont to do whenever a fandom lets me down. Writing stuffy, literary critiques of pop culture on my blog, usually about science fiction movies or TV shows (e.g., “A Feminist Reading of Grindhouse” or “Mr. Robot is Cyberpunk for the Masses”), is about the only hobby I have time for outside of freelancing.

In both my web design work and scifi review-writing hobby, I'm rather meticulous about my IP research. I always source photography that accompanies my articles via Creative Commons-licensed or license-free photography on Flickr. I even check the “commercial use allowed” option just to be safe. That’s thanks to interesting coursework on intellectual property I took during my Masters in Writing & Publishing from Emerson College. There I learned about the copyleft movement. Larry Lessig is someone I admire. In fact, all of my website’s original content, including my blog posts, are licensed Creative Commons because I believe in its mission. As a web developer I work frequently with open source software. My very own WordPress boilerplate—for which my livelihood depends on as a web developer—is licensed open source.

This is all to say I'm not some lazy pirate who copy-pastes from Google Image Search to source photography. As a creative, I care about copyright. And as a freelance web designer, I'm managing intellectual rights all the time, whether it's by signing over the copyright to websites that I create as a work-for-hire contractor, or by selecting stock assets for my clients to buy, be that photography or software.

This winter I got a phone call out of the blue from one “Tuesday Maudlin” at the law firm Higbee & Associates claiming I was infringing on the copyright of a photographer Michael Grecco. I was more mortified than I was scared. How could that even be possible, given that I've been so careful to attribute everything I use? The photo in question was a thumbnail on my X-Files Season 10 review, a picture of Mulder and Scully I'd found listed as “Creative Commons” on Flickr over two years ago.

Over the phone, I explained to Tuesday how I source photos, and asked her whether this image had been mistakenly uploaded or mislabeled. Tuesday said her client doesn’t provide Creative Commons licenses. While I had her on the phone, I clicked madly through the Flickr archive to see if I could still find the photo there … but of course, two years on the web is an eternity, and I couldn’t find that particular one. When I offered to take the photo down right then and there (which I did), Tuesday said her client “also wants to recover the license fee that should have been paid prior to the usage.” I asked her what his license fee might be for this image, thinking that I could pay Mr. Grecco a few hundred bucks for my (albeit accidental!) usage. After all, he seemed like a legit professional, and as a freelancer myself, I have respect for honest contract work.

Tuesday said that Grecco’s license fee was $20,000.

Honestly, my heart leapt into my throat. I freaked out. Winter is my slow season. It was the middle of December, the month I take off to recoup for new business in the new year. Like most working Americans, I didn't have $20k lying around. I had major end-of-year expenses coming up. I didn't have any assets, except my millennial-sized retirement fund. Would I have to dip into that in order to pay what seemed like an absolutely crazy license fee?

I mean, I've bought stock from Getty in the past for clients. Getty can get pretty expensive, but honestly I’d never even seen a license for a single image that was more than $500. And that’s for 8,000+ pixel photos with global usage rights and unlimited print runs / digital impressions. I have some experience working in the publishing industry: $20k is what a midlist author would earn as an advance on an entire book, or what a photographer might earn for the exclusive rights to a photo that might appear on the cover of Rolling Stone, which has a paid circulation of like 1.5 million! My usage amounted to a single, 558-by-263 pixel-wide image that, according to my own analytics, reached a total worldwide audience of 98 visitors in the two years it’s been published on my personal blog. How the heck was I going to prove to Tuesday Maudlin that I innocently got the X-Files image from Flickr two years ago? And (just my luck), I couldn't find the damned thing in Flickr's ever changing archive.

I also had a lingering suspicion in my head that Tuesday might not be a real person. Who has a name like Tuesday Maudlin? Her name sounds like a character from a Wes Anderson movie. Or maybe Higbee & Associates might not be a real law firm. While she was on the phone, I Googled “Higbee and Associates.” What I found was not comforting. Today, when I do the same search I get two links from the website of the supposed “National Law Firm,” and the third from a website called ExtortionLetter.info. The fourth is from /r/legaladvice with the title “Copyright Image: $1,000 payable to firm?” The fifth, from Techdirt with the excerpt “Back in June I was begrudged with a large piece of mail that I soon found out was from a National Law Firm, known as Higbee & Associates.” (I expect Paul Levy’s and Mike Masnick’s posts from last week will soon be indexed and rise up in the rankings.) Something seemed fishy.

Tuesday then told me she'd emailed me several times about the claim. Now, I’m not one to overlook emails. I practice Inbox Zero every day. As a web designer, every missed email is a potential missed lead. It wasn't until I was off the phone that I found the Higbee emails: they had all been captured by my junk filter in Postbox. At a glance, I could see why my junk filter classified them as spam: the message headers were not DMARC compliant. Two of the three emails lacked SPF authentication and all of them lacked DKIM signatures. Tuesday’s email in particular was the spammiest looking, given the all-caps subject line “517865 / IMPORTANT LEGAL MATTER” and the scrunched together paragraphs of text with mismatched fonts. The original email links to an “online portal” and provides login credentials—all things which were, in my opinion as someone who’s created HTML emails for clients in the past, tell-tale signs of a phishing attack.

Honestly, even if I had seen them prior to the phone call, I probably would've dismissed them as elements of an automated scam. But Tuesday also claimed she'd mailed a physical letter to me; the earliest-dated email that I recovered from my junk folder also mentioned a physical letter. Where to, I asked? After all, in the past two years, I had moved to three different apartments, so I wouldn’t have been surprised if a letter wasn’t forwarded.

She gave an address: 2360 Hegal Place Apt #42 in Alexandria, VA 23242.

I was too sick to laugh. Higbee & Associates must have found Fox Mulder’s fictional address from my Facebook, and mailed it there. I told her to mail me the paperwork to my actual address, and we could go from there.

I told my wife the news when she got home. I felt helpless and ashamed. How could I, of all people, make this sort of mistake? My wife reassured me that whatever happened, we'd survive. I became less optimistic the more I learned about Higbee & Associates. I worked up the courage to download the Higbee emails into a virtual machine so I could safely open the files they'd attached to the emails. Sure enough, there was the supposedly infringing X-Files photo staring back at me, and in Higbee's letter, the scary demand:

“If forced to go to court, my client will ask for the maximum relief possible, which may include statutory damages under 17 U.S.C. §504 for up to $150,000 for intentional infringement or $30,000 for unintentional infringement. My client would also ask the court to have you pay court costs and attorneys fees. Copyright lawsuits can result in judgments, wage garnishments and liens on property. In some instances, the business owner can be held individually liable.”

The copyleft movement suddenly felt like a trap. What if other images I'd acquired from the Creative Commons were misattributed like this one? I took down ALL the posts on my blog and stayed up all night, going back to see which ones I could find again on Flickr, making a log of the attributions and screenshotting the links. If I had any doubt at all, I replaced images with better-sourced ones and live links. I couldn't afford to be ruined financially for any fandom, let alone my favorite.

Higbee & Associates brags about their high success rate and the money they’re generating for their clients. That scares me. If Higbee & Associates is in fact using automated technology to search for infringements and then issuing these demands en masse, most people will not have the resources at their disposal to defend themselves or pay the mind-boggling settlements. How many thousands of other people are in a position similar to mine, right now? Unable to afford an exorbitant fee, believing the threat is real, and terrified to lose their home over a single photo?

One of wife’s close friends suggested I get in touch with an attorney specializing in IP law. She said the demand letter looked suspect, but she was in no position to advise because her area of expertise wasn’t in intellectual property rights. My wife reached out to a women’s networking group for referrals—which led to my meeting Carolyn Homer.

Needless to say, I am so glad I did. Not only is Carolyn a nerd like me, but she lives and breathes IP. The depth of her generosity in taking on my case was matched only by her confidence and knowledge of copyright law. I started to breathe again. There were serious problems with Higbee’s demand. I could contest them, not roll over and cough up $20k.

Filed Under: copyright, copyright trolling, mathew higbee, threat letters, tuesday maudlin, x-files
Companies: higbee and associations

Catholic School Teen's Lawyers File $250M Defamation Suit Against The Washington Post; Fail To List Any Actual Defamation

from the pro-se-but-for-retained-legal-representation dept

Lawsuits were threatened after students from a Kentucky Catholic school were portrayed as engaging in racist behavior during an anti-abortion march at the nation's capital. An edited video swiftly circulated the internet, showing student Nick Sandmann facing off with a Native American protester while wearing a seemingly-smug file on his face and a Make America Great Again hat on his head.

More footage of the incident appeared later providing a bit more context, making the obvious racism seem less obvious. But the Twitter ship had sailed and there was little hope of turning it around. Lessons could have been learned from rushing to judgment, but Nick Sandmann and his family's lawyers have decided this lessons should be taught via libel lawsuits. They've got an uphill battle as nearly everything said about Sandmann and the incident was protected opinion, but a lack of credible arguments has never prevented lawsuits from being filed.

As Buzzfeed reports, one of the first targets is the Washington Post. Sandmann's complaint [PDF], composed by attorneys Lin Wood and Todd McMurtry, is about half op-ed, half federal complaint. Here's the lead off:

The Post is a major American daily newspaper published in Washington, D.C. which is credited with inventing the term "McCarthyism" in an editorial cartoon published in 1950. Depicting buckets of tar, the cartoon made fun of then United States Senator Joseph McCarthy's "tarring" tactics of engaging in smear campaigns and character assassination against citizens whose political views made them targets of his accusations.

In a span of three (3) days in January of this year commencing on January 19, the Post engaged in a modern-day form of McCarthyism by competing with CNN and NBC, among others, to claim leadership of a mainstream and social media mob of bullies which attacked, vilified, and threatened Nicholas Sandmann (“Nicholas”), an innocent secondary school child.

The Post wrongfully targeted and bullied Nicholas because he was the white, Catholic student wearing a red “Make America Great Again” souvenir cap on a school field trip to the January 18 March for Life in Washington, D.C. when he was unexpectedly and suddenly confronted by Nathan Phillips (“Phillips”), a known Native American activist, who beat a drum and sang loudly within inches of his face (“the January 18 incident”)

Moving along…

The Post ignored basic journalist standards because it wanted to advance its well-known and easily documented, biased agenda against President Donald J. Trump (“the President”) by impugning individuals perceived to be supporters of the President.

[Scrolls to the bottom of the filing to make sure it wasn't composed by Larry Klayman...]

In this country, our society is dedicated to the protection of children regardless of the color of their skin, their religious beliefs, or the cap they wear.

But the Post did not care about protecting Nicholas. To the contrary, the Post raced with a reckless disregard of the facts and truth because in this day and time there is a premium for being the first and loudest media bully.

The Post wanted to lead the charge against this child because he was a pawn in its political war against its political adversary – a war so disconnected and beyond the comprehension of Nicholas that it might as well have been science fiction.

Let's just try to find the factual allegations. It's established that Sandmann's lawyers wish to offer their opinion that the Washington Post is a bully that targeted Nick Sandmann because he supported a president the Post dislikes. But that's all that's been established -- despite the use of the term "defamation" here and there -- by the time the lawsuit drops its first mention of damages. Some weird eye-for-an-eye demand is being made by Sandmann's attorneys.

In order to fully compensate Nicholas for his damages and to punish, deter, and teach the Post a lesson it will never forget, this action seeks money damages in excess of Two Hundred and Fifty Million Dollars ($250,000,000.00) – the amount Jeff Bezos, the world’s richest person, paid in cash for the Post when his company, Nash Holdings, purchased the newspaper in 2013.

Eight pages in, we finally have an allegation that doesn't sound like an angry blog post:

On January 19, 20 and 21, the Post ignored the truth and falsely accused Nicholas of, among other things, “accost[ing]” Phillips by “suddenly swarm[ing]” him in a “threaten[ing]” and “physically intimidat[ing]” manner as Phillips “and other activists were wrapping up the march and preparing to leave,” “block[ing]” Phillips path, refusing to allow Phillips “to retreat,” “taunting the dispersing indigenous crowd,” chanting “build that wall,” “Trump2020,” or “go back to Africa,” and otherwise engaging in racist and improper conduct which ended only “when Phillips and other activists walked away.”

Seems straightforward except for a number of inconvenient facts. As the lawsuit admits, these reports were based on an edited video that led many, many people to the same conclusions. The lawsuit claims the Post acted carelessly by not acting on information it became aware of four days after it published its first article.

By January 23, the Post conceded that the @2020fight account that was largely responsible for the edited video going viral on social media may have been purchased from Shoutcart.com for that specific purpose.

With no investigation into the @2020fight account, the Post actively, negligently, and recklessly participated in making the 2020fight Video go viral on social media when on January 19 at 9:21 a.m., Post reporter Joe Heim re-posted the 2020fight Video.

The lawsuit says the Post recklessly published a piece on the incident on January 19th, four hours after the edited video went viral. Somehow this is defamatory because the Post "recklessly" did not act on information it didn't have (the extended video posted a day later) prior to publishing this article. Then the lawsuit wanders off to discuss the investigation of the incident by a firm hired by the Catholic school Sandmann attends, as though this should have some bearing on an article published prior to an investigation the Washington Post wasn't involved with.

When it comes to narrow down the alleged defamation, the lawsuit somehow gets even worse. It spends four paragraphs enumerating "false and defamatory gists" -- a legal concept usually offered as a defense, rather than an accusation. Then it accuses the Washington Post of defaming Sandmann by publishing statements made by other people to the Post reporter.

In its First Article, the Post published or republished the following false and defamatory statements:

(a) The headline “‘It was getting ugly’: Native American drummer speaks on the MAGA-hat wearing teens who surrounded him.”

(b) “In an interview Saturday, Phillips, 64, said he felt threatened by the teens and that they suddenly swarmed around him as he and other activists were wrapping up the march and preparing to leave.”

(c) “Phillips, who was singing the American Indian Movement song of unity that serves as a ceremony to send the spirits home, said he noticed tensions beginning to escalate when the teens and other apparent participants from the nearby March for Life rally began taunting the dispersing indigenous crowd.”

(d) “A few people in the March for Life crowd began to chant ‘Build that wall, build that wall,’ he said.”

(e) “‘It was getting ugly, and I was thinking: ‘I’ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial,’ Phillips recalled. ‘I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.’”

(f) “‘It clearly demonstrates the validity of our concerns about the marginalization and disrespect of Indigenous peoples, and it shows that traditional knowledge is being ignored by those who should listen most closely,’ Darren Thompson, an organizer for the [Indigenous Peoples Movement], said in the statement.

(g) “Chase Iron Eyes, an attorney with the Lakota People Law Project, said the incident lasted about 10 minutes and ended when Phillips and other activists walked away.”

(h) “‘It was an aggressive display of physicality. They were rambunctious and trying to instigate a conflict,’ he said. ‘We were wondering where their chaperones were. [Phillips] was really trying to defuse the situation.’”

(i) “Phillips, an Omaha tribe elder who also fought in the Vietnam war, has encountered anti-Native American sentiments before . . . .”

From there, it discusses about a second article by the Washington Post, alleging it was somehow defamatory for the Post to publish a statement from the Covington Diocese decrying the teen's behavior. It also says a third article from the Post was defamatory -- again listing only things other people said to the Post's reporter. Then there's more stuff about "defamatory gists." And on it goes for several more pages, highlighting each Post article about the subject while failing to point out any defamatory statements actually made by the Washington Post.

This is a garbage lawsuit. It makes zero credible defamation accusations, spending its entirety either stating its own opinions about the paper or attempting to hold it legally responsible for statements made by other people. It's not winnable. Its sole purpose appears to be to exist loudly, hoping to create a deterrent effect simply by banging about the place self-importantly. It will go nowhere, but it will do so as noisily as possible. If this is all Sandmann's parents wanted from their legal representation, they should have accepted the pro bono offers being made, rather than sink money into this ostentatious waste of time.

Filed Under: defamation, free speech, jeff bezos, lin wood, nick sandmann, protest, todd mcmurty
Companies: washington post

Daily Deal: The DevOps Training Master Class Bundle

from the good-deals-on-cool-stuff dept

DevOps is a software development methodology that combines software development with information technology operations in order to shorten the system development life cycle. Most software companies today employ extensive DevOps staffs and engineers are in constant demand. The DevOps Training Master Class Bundle will help you Master configuration management & continuous integration deployment, delivery and monitoring using DevOps tools such as Git, Docker, Jenkins, Cucumber, TeamCity, Ansible, and Nagios. You'll learn key concepts for Microsoft Azure, Agile Scrum, Puppet and more. It's on sale for $69.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Teen Musician Turns Down $3 Million Record Deal: No Need For A Label Thanks To The Internet

from the thanks,-internet dept

There's a pretty fascinating profile last week in Billboard magazine of teenage musician/rapper NLE Choppa who just turned down a $3 million record label deal. Choppa (real name: Bryson Potts) rocketed to fame thanks to YouTube, where his Shotta Flow video was uploaded just last month, but has over 10 million views.

When given the chance to sign with a bunch of different labels all bidding for him, he decided to take a very different deal -- one where he retains all the rights and just partners with a distribution company, UnitedMasters:

Within a month, Choppa, whose real name is Bryson Potts, had sparked a bidding war among record companies like Republic, Interscope and Caroline, with bids reaching as high as $3 million. This kind of story is familiar: Young, local rapper goes viral; labels pounce. But this week, the rapper tells Billboard, he turned down those offers to enter a distribution partnership with UnitedMasters, Steve Stoute’s independent distribution company, without an advance and while retaining full ownership of his master recordings.

And why doesn't he need a full on record label deal? Because of the internet and all of the various internet services out there that are already making him wealthy:

Stoute says that when the “Shotta Flow” music video caught the eye of UnitedMasters’ A&R team last month, he immediately reached out to Choppa and the rapper's mother, who was acting as his manager, offering distribution for the song. Choppa agreed. “Then, record companies are calling the guy and offering a bunch of money,” Stoute tells Billboard. “Here’s the issue: He’s already just seen, with him owning the rights and us doing distribution, he’s earning money on Spotify and Apple Music, and his song is growing on YouTube. What does he need a record company to do?”

Let's repeat that for those of you who are a bit slow in class:

He’s already just seen, with him owning the rights and us doing distribution, he’s earning money on Spotify and Apple Music, and his song is growing on YouTube. What does he need a record company to do?

Just last week we were talking about how many independent artists are embracing the internet to avoid the legacy gatekeepers.

Meanwhile, bureaucrats and recording industry lobbyists keep insisting that the EU needs Article 13 because the internet is unfair to artists? They're saying that there's a "value gap" because of YouTube? Maybe, just maybe, Article 13 has a lot more to do with the fact that the labels are losing relevance. When an artist like Choppa can retain his rights, build a massive audience, and make a ton of money thanks to internet platforms and does not need a label or all the downsides of a label deal, it certainly suggests that the "problem" Article 13 is claiming to solve might not be an actual problem. Indeed, the real "problem" that Article 13 seems to solve is the fact that the labels aren't needed as much any more. And that's not actually a problem for anyone who isn't, you know, a record label.

Filed Under: article 13, bryson potts, copyright, internet, nle choppa, record labels, shotta flow
Companies: unitedmasters

Industry Claims That Cord Cutting Would Be A Fad Aren't Looking So Hot

from the adapt-or-perish dept

Remember when the cable industry used to pretend that cord cutting wasn't real? Or perhaps you remember that once the industry was actually willing to admit it was a real trend, they'd claim it was only something being done by losers living in their parents' basement?

Or perhaps you'll remember the cable and broadcast industry claims that cord cutting was just a temporary phenomenon that would go away once the housing markets stabilized and Millennials started procreating? Or how companies like ESPN routinely claimed that warnings about the trend were an unimportant fiction that should be ignored?

Good times.

While there are still a few sector analysts and executives here and there who'll bizarrely try to downplay one of the biggest trends in TV industry history, the numbers keep making it harder and harder to keep one's head buried a foot below ground. Last year, for example, once again saw one of the highest defection rates of traditional TV subscribers in recent memory. According to Wall Street analysts, the top pay TV providers lost 2.5 million subscribers last year alone:

Ironically the two companies that actually tried to adapt to the cord cutting trend suffered the worst losses. Both AT&T and Dish have launched DirecTV Now and Sling TV, respectively, in a bid to try and at least hoover up a few of these fleeing customers with their own streaming services. That's something to be applauded, especially since huge swaths of the sector have simply responded by doubling down on terrible ideas (from raising rates to fighting against real cable box competition). But even with adaptation, users are still fleeing to other alternatives (Amazon, Hulu, Netflix) instead.

It's not going to be getting any easier for entrenched pay TV providers, especially the ones that stubbornly refuse to compete on price. The streaming market will soon face a new rival in the form of Apple's and Disney's new Disney+ streaming service, which will be the exclusive home of most Star Wars, Marvel, Pixar, and Disney children's' programming:

"The clear implication is that year-over-year subscriber trends for programmers that improved throughout 2018 are set to worsen again in 2019,” Greenfield wrote. The analyst is widely known as bearish on the pay-TV sector, frequently using the hashtag #goodluckbundle in his commentary (as he did in Wednesday’s post). The cord-cutting problem promises to grow even more exacerbated as new subscription-streaming services from Disney (Disney+), WarnerMedia and NBCUniversal hit the market starting later this year. Those will via for consumers’ entertainment dollars against SVOD players like Netflix, Hulu, and Amazon Prime Video."

So if companies like AT&T and Dish are actually trying to adapt to reality, why are they seeing such major departures? Many of these users were on unrealistically cheap discounted promotions intended to drive adoption that ended. And some users were frustrated by the a price hike by AT&T in the wake of its latest megamerger with Time Warner. New streaming companies are also actually good at customer service, something the cable and broadband industry hasn't been able to get a handle on for the better part of a generation.

Between tight margins and an ocean of new arrivals, it's going to be pretty hard for the cable industry to make anywhere near the same profits they were used to during the heyday of cable TV. But that's generally how competition works. And you shouldn't feel too badly for the Comcasts of the world, since their solution will simply be to jack up the cost of broadband, where competition is far weaker. Still, there's a subset of executives who still seem to somehow believe they're owed a permanent position of dominance without having to work for it. That delusion is falling apart more quickly than most of them expected.

Filed Under: cable, cord cutting, over the top, streaming