There are a variety of reactions I often have to these stories from these early days of Techdirt. Sometimes they include amusingly incorrect predictions or shockingly precise ones; sometimes it's simply intriguing to see the small beginnings of something that would later become a big deal. This week in 2002, there was one post that fell into that latter category in a particularly striking way that makes it very funny to read now in all its early innocence, and so I think it's worth reposting in full. In the days when the web was still fresh, before some of the bigger cyberwar panics, and long before today's perplexing geopolitical landscape, there was this small post entitled Can't Hack The Kremlin:
Apparently, since the new website of Russian President Vladimir Putin went online about 24 hours ago, more than 100 hackers have tried to break in. Putin is "excited" that the Kremlin's techies have been able to block all the hack attacks. Does anyone else think this is just begging for more hackers to hit the site until someone finds a way in? It seems odd to promote how proud you are that no one broke in after just one day.
And the rest is, as they say, history. And also current events.
It ain't easy being a high-profile celebrity these days. A job that once mostly involved ducking cameras and putting out the occasional press release has evolved into one where multiple social media platforms must be updated so that fans feel that real connection that can only come with a carefully managed social media message. The brand is the ultimate product rather than any athletic or artistic output. To that end, even these social media messages come with sponsorships, carefully cultivated relationships with large companies itching to attach their names to well-followed celebrities and their social media accounts.
Speaking of athletes, the NBA draft just happened. Many young men realized their dream to play in the NBA after years of hard work. Because they are young, many of those athletes have social media accounts with the expected platforms. And many of them posted messages about how happy they were with the draft day results. Like Markelle Fultz, for instance, who was drafted number one overall by the Philadelphia Seventy-Sixers and immediately took to Instagram to let his fans know completely, organically and authentically how pleased he was.
Oops. In case you can't read the embedded tweet, Fultz said that he was "Excited to head to (City) and join the (team name)", all while happily pointing out that the message was sponsored by watchmaker Tissot. Clearly this was a pre-written template to send out on Instagram once it had been filled in, except Fultz never filled it in. While he deleted the message shortly after, it's unclear just how (insert emotion) Tissot was with the message.
More importantly, the curtain gets pulled back on Fultz's engagement with his followers. Certainly it's not the biggest deal in the world and most people are having a little light-hearted fun with Fultz's faux pas, but it does strike me that anyone that saw his Instagram account as a way to honestly engage with him likely knows better now.
Fultz, meanwhile, can likely console himself with whatever insane amount of money a number one overall pick gets these days. Here's hoping the Sixers don't forget to fill in the direct deposit template.
App-maker King, of Candy Crush fame, has built up a reputation for itself as a trademark bully. The company has previously attempted to threaten pretty much any game or mobile app that utilizes the words "candy" or "saga." And if that sounds insane to you, you're not alone, as there have been several instances of severe backlash against how King goes about "protecting" its trademarks.
As this site's version of the saying goes: live by the intellectual property, die by the intellectual property. Well, not die, perhaps, but it's slightly amusing to watch King have its "Crush" trademark opposed by Dr. Pepper.
In a bid to create a further layer of protection for their games, King.com have filed an application to protect ‘Crush’ as a trade mark in the US for confectionery. Unhappy about this application, Dr Pepper have filed an opposition claiming the ‘Crush’ trade mark will damage the goodwill of their own ‘Crush’ marks.
Dr Pepper owns several trade marks for the word for a number of items including certain confectionary items and cosmetics. Dr Pepper has based their claims on the fact they believe by allowing the application by King.com, it will cause dilution of the distinctive quality of Dr Peppers marks.
Ok, let's get the obvious out of the way: this is a fairly silly opposition if its basis is to do with customer confusion. Frankly, I can't imagine how many people are even aware that the Crush mark is being used in the confections space by Dr. Pepper. I certainly can't think of a single Crush-branded candy. My quick google search didn't turn up much either. Crush is known for its soft drinks. Meanwhile, King is known for its apps, and even if it makes the move into retail in the way that Angry Birds has, and that retail business includes candies, who is going to confuse any of that with Dr. Pepper's Crush brand?
That being said, this opposition is certainly more valid than King's bullying of the makers of The Banner Saga over that last word. I won't say this has reached the level of schadenfreude for me, but it is somewhat hard to get any tears to build up over King having to endure a silly opposition to its trademark.
See Something, Say Something (UK Edition) has arrived! In the wake of terrorist attacks, local law enforcement are urging people to report "suspicious" activities. There's a long list of things to be on the lookout for, but most notable is the call to view certain internet use as suspicious, as Joseph Cox reports.
Police in the capital have reportedly been handing out leaflets listing what authorities deem as suspicious activity, in the hope that vigilant community members can continue to provide helpful information to law enforcement. Perhaps, in a sign of how online communities play an increased role in radicalization, the leaflet specifically points to use of the dark web as a potential link to terrorism.
"Be aware of what is going on around you—of anything that strikes you as different or unusual, or anyone that you feel is acting suspiciously—it could be someone you know or even someone or something you notice when you are out and about that doesn't feel quite right," another version of the leaflet, which is part of a national campaign and not London specific, reads.
Specifically, it asks citizens to report someone "visiting the dark web or purchasing unusual items online." Not exactly the sort of thing one's likely to catch shoulder-surfing. The leaflet also recommends reporting people for engaging in suspicious photography -- something that's worked out oh so well here in the US.
As Cox points out, tying terrorism to dark web use is kind of pointless. While the dark web is no doubt used by some terrorists, it certainly isn't where most of their activity takes place.
[M]uch of the communication between Islamic State supporters takes place on social media, such as Telegram. And the group's and supporters' propaganda videos are often distributed on everyday social network sites.
What an "education" campaign like this has the potential to do is turn any deviation from normal web use into something inherently suspicious. If law enforcement likes chasing down worthless tips, depicting things non-terrorists do as terrorist-centric is a good way to get that ball rolling.
I don't doubt the public can play a part in preventing terrorist attacks, but the leaflet asks citizens to become intrusive extensions of the government. Most citizens aren't going to know whether their friends and neighbors surf the dark web, much less have any idea if they're "carrying out suspicious transactions on their bank account." The upshot will be a generalized heightened level of suspicion that will most likely manifest itself as expressions of citizens' inherent biases and bigotry.
So (for good reason), we keep noting that if you want to see how the American broadband market really works, you should take a close look at West Virginia. As in most states, a lack of competition keeps broadband prices high and speeds slow, with far too many consumers forced to pay a tidy sum for DSL speeds circa 2002. But the state has also been embroiled in scandal after scandal involving Frontier Communication's mismanagement of taxpayer subsidies that were intended to try and resolve this problem.
Local Charleston Gazette reporter Eric Eyre has quietly done an amazing job the last few years chronicling West Virginia's immense broadband dysfunction, from the State's use of broadband stimulus subsidies on unused, overpowered routers and overpaid, redundant consultants, to state leaders' attempts to bury reports supporting allegations that Frontier engaged in systemic, statewide fraud on the taxpayer dime.
Eyre is back again directing readers to a new report by the US Commerce Department's Office of Inspector General (pdf) which found that Frontier pretty consistently tried to game the subsidy system, imposing various "loading" and "invoice processing" fees -- outlawed by federal grant rules governing stimulus funding -- on to invoices submitted to the state. Frontier consistently used these fees to pad their bills to the tune of $4.7 million, and internal memos feature employees clearly demonstrating that Frontier saw this bill padding as a way to glean some additional profit on the taxpayer's dime:
The scathing, 31-page report declared the payments "unreasonable" and "unallowable." Meanwhile, Frontier saw the tacked-on charges as a “revenue opportunity,” according to an internal company email cited in the report. Frontier employees referred to the extra fees as “markups” and “profit."
Keep in mind Frontier had already been fighting a lawsuit alleging that it used a wide variety of tricks to both jack up its original estimates for broadband deployment -- and ensure any subsidies would only be used to shore up Frontier's internal networks, and not to improve overall broadband penetration and competition in the state. This new report notes that one of the tricks used by Frontier was to order and store a massive amount of unused fiber for future "repairs," allowing it to bill more than projects actually cost:
"What’s more, Frontier misled the public about the amount of unused fiber cable — called “maintenance coil” — the company installed across the state, according to the report. The extra fiber, which is stored at public facilities and used for repairs, drove up the broadband expansion project’s cost. Frontier wound up placing 49 miles of spooled-up, unused fiber across West Virginia — four times the amount the company had disclosed to state officials, according to the report.
Unsurprisingly, Frontier insists it has done nothing wrong, despite years of similar allegations across the state. This is the same Frontier that just got done firing a seven year employee because, at his part-time job as West Virginia senate leader, he voted for a new law that would actually help improve broadband penetration and competition in the state. Oddly, state officials (many of the same ones that tried to bury reports alleging the same sort of thing earlier) aren't commenting on the report's findings.
It should be noted that this is how state politics has worked for years for the likes of AT&T and Verizon, who long found it easy to gobble up subsidies and tax breaks, then pay state lawmakers and regulators to look the other way when it came time for accountability over how subsidies are spent. More often than not, these companies are simultaneously being allowed to quite literally write state telecommunications law ensuring that competition in the broadband sector remains muted. All while everybody in the chain professes their unwavering dedication to free markets and consumer welfare.
But Frontier has neither the competency nor the legal and accounting firepower of its larger counterparts, and as it has stumbled closer to bankruptcy courtesy of some questionable business decisions over the last few years, keeping formerly loyal state politicians and regulators consistently looking the other direction has proven increasingly difficult. Still, believing that this ends with anything even remotely resembling accountability and justice remains a very risky wager.
Castile didn't have a criminal record -- or at least nothing on it that mattered. Otherwise, he wouldn't have been allowed to own a weapon, much less obtain a permit to conceal the gun. Castile told Yanez -- as the permit requires -- he had a concealed weapon. He tried to respond to the officer's demand for his ID, reaching into his pocket. For both of these compliant efforts, he was killed.
Castile's shooting might have gone unnoticed -- washed into the jet stream of "officer-involved killings" that happen over 1,000 time a year. But his girlfriend, Diamond Reynolds, immediately live-streamed the aftermath via Facebook. Her boyfriend bled out while responding officers tried to figure out what to do, beyond call for more backup to handle a dead black man sitting in his own vehicle. Only after Yanez fired seven bullets into the cab of the vehicle did officers finally remove his girlfriend's four year old daughter.
To "win" at killing citizens, you must start the spin immediately. Yanez spun his own, speaking to a lawyer less than two hours after killing Castile. Local law enforcement did the same thing. Documents obtained by Tony Webster show Special Agent Bill O'Donnell issued a warrant to Facebook for "all information retained" by the company on Diamond Reynolds, Castile's girlfriend. This was to include all email sent or received by that account, as well as "chat logs," which presumably means the content of private messages. The warrant also demands any communications that may have been deleted by Reynolds, as well as metadata on photos or videos uploaded to Facebook. It came accompanied with an indefinite gag order.
Why would law enforcement want (much less need) information from the victim's girlfriend's Facebook account? It appears officers were looking to justify the killing after the fact. The following sworn statement was contained in the affidavit:
Your affiant is aware through training and expertise that individuals frequently call and/or text messages to each other regarding criminal activity during and/or after and [sic] event has occurred.
This is warrant boilerplate, especially when it comes to obtaining information from accounts or devices. But this warrant should be considered anything but business as usual. Should be. Isn't. This is the actual standard operating procedure after an officer kills someone: the department goes digging through its criminal records to find any reason at all to have killed the person and to buttress "feared for safety" excuses given by officers -- awarding them points for effort based on information they didn't have when they ended someone's life.
When it comes to police shootings in America, there are no aggressors in uniform, only victims. Officer Yanez made his own excuses, theorizing Castile's willingness to smoke pot in front of a 4-year-old child indicated Castile had no respect for human life.
I thought, I was gonna die, and I thought if he's, if he has the, the guts and the audacity to smoke marijuana in front of the five year old girl and risk her lungs and risk her life by giving her secondhand smoke and the front seat passenger doing the same thing, then what, what care does he give about me?
Following his testimony's logic, smoking pot in front of a child has so severely damaged Castile's moral compass, he apparently would have thought nothing about shooting an officer over a non-functioning tail light. There's no logical boundary cops won't cross to pin the blame on the dead. Hence the Facebook warrant to dig up dirt on his girlfriend in hopes of adding a bit more post facto righteousness to the shoot.
The only upside -- and it's incredibly small given the surrounding circumstances -- is Facebook refused to hand over the information on the grounds that the indefinite gag order was unconstitutional. Faced with this pushback, Minnesota police withdrew the warrant. But in the end, Yanez was acquitted and Philando Castile is still dead -- a man who did nothing more than try to comply with an officer's orders.
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Yesterday we wrote about coal company Murray Energy and its CEO, Bob Murray, actually following through and suing John Oliver -- something that Murray's lawyers had threatened to do when Oliver and his team had reached out to Murray for a piece Oliver was doing on coal. The result of being threatened was that Oliver spent nearly half of the 24 minute segment on Murray, carefully detailing some of Murray's history and positions. If you missed it, watch it again here:
Anyway, when we wrote about the case yesterday, we noted that we had to do it based solely on the reporting of the Daily Beast, as they broke the story and -- for reasons I still don't understand -- refused to post the actual complaint. However, now we've obtained the full complaint and can dig in on how incredibly silly it is. It appears to be a quintessential SLAPP lawsuit, where the entire point is not to bring a legitimate cause of action, but to chill free speech that criticizes Bob Murray. As Ken "Popehat" White notes, it's "lawsuit as theater" and "an unapologetic political screed" -- that is, apparently designed to rile people up, rather than to present a reasonable legal argument.
Let's dig in. It certainly starts out on a high note with the rhetoric:
On June 18, 2017, Defendants executed a meticulously planned attempt to assassinate the character and reputation of Mr. Robert E. Murray and his companies, including Murray Energy Corporation and those in West Virginia, on a world stage. They did so for their personal financial gain by knowingly broadcasting false, injurious, and defamatory comments to HBO's approximately 134 million paying subscribers, while also knowing that their malicious broadcast would be repeated to countless more individuals through various outlets (including other media owned by certain Defendants.
I've now watched the video four times and I fail to see anywhere that it goes after "those in West Virginia." Indeed, it's actually quite sympathetic to the plight of miners and former miners in the area who have run into problems or lost their jobs. The only people that it holds out as problematic... are the CEOs of various mining companies and the President of the United States. And even if Murray's reputation is mocked in the piece, as long as there aren't false statements of fact, presented with knowledge of their falsity or reckless disregard for the truth, it's all perfectly legal. Making Bob Murray look foolish or mean isn't illegal, as long as it's based on statements of opinion or those backed up with evidence.
But, Murray's lawyers appear to suggest that because Murray is in poor health, that somehow makes this entirely different. It's... an odd sympathy play in a lawsuit:
They did this to a man who needs a lung transplant, a man who does not expect to live to see the end of this case. They attacked him in a forum in which he had no opportunity to defend himself, and so he has brought this suit to try to set the record straight.
The health stuff is pure "theater" as Ken noted. The "no opportunity to defend" himself is weird, because I thought Republicans like Murray were completely 100% against a "fairness doctrine" that required equal time for political opponents (which is the right position to take). But, even beyond that, the idea that Murray had no choice but to file a lawsuit to defend himself or to set the record straight is laughable. As Oliver's report clearly showed, Murray is regularly on TV and could easily get a message onto the various TV news programs that have him on as a guest. And, either way (again) that's got absolutely nothing to do with defamation law and how it works.
The sob story continues:
Worse yet, Defendants employed techniques designed solely to harass and embarrass Plaintiffs, including Mr. Murray, a seventy-seven year old citizen in ill health and dependent on an oxygen tank for survival, who, despite the foregoing, continuously devotes his life, including by working seven days each week, to save the jobs and better the lives of the thousands of coal miners that he employs in West Virginia and elsewhere. Defendants childishly demeaned and disparaged Mr. Murray and his companies, made jokes about Mr. Murray's age, health, and appearance, made light of a tragic mining incident, broadcasted false statements, and incited television and internet viewers to do harm to Mr. Murray and his companies, all before a worldwide audience--including the thousands of people that work for and do business with Mr. Murray and his companies in West Virginia. In fact, medical doctors have informed Mr. Murray that he should stop working because the stress is shortening his life. Mr. Murray must, however, continue working because of all those individuals who rely on him. But nothing has ever stressed him more than this vicious and untruthful attack.
Bravo! Quite a performance there. This seems clearly targeted towards pulling at the heartstrings of folks in West Virginia, but, again seems to have little to nothing to do with the actual law. Again, Murray's health is not an issue here -- and if this has caused him more stress than anything else in his life ever, then Mr. Murray has led an incredibly low stress life. Is he really saying that a late night British comedian on a premium channel has caused him more stress than the time that one of his mines collapsed and killed a group of his employees? If so... that's... weird. Separately, making fun of someone's age, health or appearance (and I don't recall any actual jokes about his age or health...) is, again, not defamation. It's sort of protected by the First Amendment. The only thing that could be defamation is "false statements" and notice how the lawsuit seems to be playing up everything else, rather than that?
When you start to dig into the actual meat of the lawsuit... there's almost nothing there. It complains that Oliver's staff may have contacted Murray Energy under false pretenses, saying that they "were under the false impression that Defendants would use this supplied information to accurately and responsibly broadcast the facts and circumstances regarding the topics," but that, again, makes little difference to the question of defamation. Just because a news company doesn't present your version of the events exactly as you want it presented, doesn't make it defamation. Not by any stretch of the imagination.
The lawsuit does provide plenty of additional bits of information concerning the Crandall Canyon mine collapse and how Murray reacted to it. And all of that is perhaps interesting, but again, none of it requires Oliver to portray the story in the way that Murray Energy likes. And, again, if you go back and review the actual story that Oliver did, he does not contradict any of the factual claims laid out by Murray's lawyers. Rather, he highlights the stories of miners or families of miners who were impacted by the collapse and were not happy with how Murray responded. The crux of the argument on Murray's side is "but we tried real hard." And, great. But highlighting how others felt about the effort and actions is not defamation. It's presenting other viewpoints.
The only possible "factual" point where there could be some controversy is over whether or not the mine collapsed due to an earthquake, as Murray has insisted since the day of the collapse itself. Oliver pointed to the US government report on the incident put together by the Mine Safety and Health Administration (MSHA), a part of the US Department of Labor. That report concluded: "The August 6 catastrophic accident was the result of an inadequate mine design," and, on top of it: "MSHA found no evidence that a naturally occurring earthquake caused the collapse on August 6."
In the lawsuit, Murray's evidence that this is false seems to focus on semantics and making fun of the MSHA inspectors (you know they're making fun of them because it puts "experts" in quote marks):
The Federal Mine Safety and Health Administration's report regarding the collapse (the "MSHA Report") contained multiple concessions that a sudden change in stresses due to a "slip along a joint" or "joint slip in the overburden," which is very similar to the United States Geological Survey's definition of an "earthquake" (i.e., "both sudden slip on a fault, and the resulting ground shaking and radiated seismic energy caused by the slip"), "could have been a factor in triggering the collapse" and was one of the "likely candidates" for triggering the collapse, but MSHA and its "experts" chose not to analyze the seismic data of the triggering event and instead focused on the secondary collapse, which was a disservice to the lost miners, their families and the truth.
Studies have shown that the Mine collapse was a seismic event originating in the Joe's Valley Fault Zone. More specifically, these studies indicated that the triggering event for the seismic disturbance, which was not consistent with normal mining-induced seismicity resulting in the collapse, occurred on a subsidiary fault parallel to the Joe's Valley Fault. This is a more technical manner of stating that the collapse was caused by what many would characterize as an earthquake.
So that first paragraph is nonsense. It's not "actual malice" if you have clear evidence to back up your statements, and the official MSHA report sure seems like pretty good evidence to support that Oliver and his team believed what Oliver said was true. The fact that Murray doesn't like the MSHA "experts" doesn't magically make using their report "defamation." Second, notice that all of the talk about the earthquake comes with qualifying language: "very similar to... definition of an 'earthquake'", "what many would characterize as an earthquake." Even beyond the other stuff, this further undermines any defamation claim over the one sort of "fact" the lawsuit focuses on: if there's a dispute over whether or not what happened was truly an earthquake, then choosing a side in that dispute is not defamation. It's an opinion. That's protected.
Mr. Murray and his companies warned Defendants to cease and desist from a broadcast of defamatory comments or any misguided attempt at humor regarding the tragic mine collapse and loss of life, which Plaintiffs believed would be cruel and heartless.
So, uh, earlier in the complaint, Murray's lawyers argue that they believed that when Oliver and his team reached out they were ordinary journalists, claiming that they reached out "under the guise of responsible and ethical journalism." And, yet, here they admit that that they knew that he's a comedian who regularly satirizes people and companies, thus they didn't want to see a humorous take on the situation. Also, there's no law against "misguided" humor (and, uh, many folks found the humor to be quite on target). Finally, there is nothing in defamation law about it being illegal for you to have "cruel and heartless" comedy. And, in actuality, Oliver's piece was neither cruel, nor heartless. Many would likely argue that it was incredibly sympathetic and empathetic to the plight of struggling coal miners, who are facing a radical transformation of their industry.
The complaint, once again, then hits on the idea that because Oliver's story didn't represent the collapse the way Bob Murray wanted it portrayed, that's defamation. That's... not how it works. It's not how any of this works.
In the ensuing broadcast, Defendants deliberately omitted the facts Plaintiffs provided regarding the Crandall Canyon Mine incident. There was no mention of the efforts Mr. Murray personally made to save the trapped miners. Defendant Oliver did not tell his audience that Mr. Murray arrived at the Crandall Canyon Mine in Utah within four hours of the collapse. Nor did Defendant Oliver say anything about the twenty-eight straight days Mr. Murray then spent on that mountain overseeing the massive rescue efforts, and administering to the families. Nor did he mention that Mr. Murray personally led the rescue efforts when rescue workers were injured and killed in a subsequent event ten days after the initial seismic event, in fact pulling rescue workers from the debris and attending to their injuries with his own hands and administering to them.
That's nice and all... but it's totally meaningless. Not reporting those things is not defamation. Murray has every right to then put out a statement, or go on TV, or get another reporter to tell these stories. But in a lawsuit? Just because the story is about Bob Murray doesn't mean that Bob Murray gets editorial control. That's not how it works, Bob.
Then it gets even more bizarre:
Instead, presumably to boost ratings, line their pockets with profits, and advance the show's anti-coal agenda, Defendant Oliver intentionally, falsely, and outrageously conveyed that Mr. Murray has no evidence to support his statements that an earthquake caused the tragedy that took the lives of Murray Energy miners during the course of their work for the organization.
Rather than fairly characterizing the evidence that he had in his possession on the subject, Defendant Oliver instead quoted an out-of-context snippet from a single report stating that there was "no evidence that a naturally occurring earthquake caused the collapse." Because Defendant Oliver omitted any mention of the other reports he was aware of that evidence that an earthquake caused the collapse, as Mr. Murray correctly stated following the collapse, Defendant Oliver's presentation intentionally and falsely implied that there is no such evidence.
Yeah. So, about that. The above just isn't true. Watch the video again. Oliver directly says that Murray relies on other evidence to support the earthquake claim ("to this day, Murray says the evidence proves that he was correct.") Then Oliver notes (correctly and accurately) that the government report says otherwise: "that was decidedly not the conclusion of the government's investigation." So, for Murray's lawyers to argue that Oliver ignored the evidence on the other side is... simply not accurate. Oliver notes that Murray points to evidence on his side, but he then points to the government's conclusions. Yes, Oliver makes it clear he believes the government's report, but, um, it's the US government. You're not going to win a defamation lawsuit by arguing that relying on the conclusions of a federal government investigation is defamation, just because you have "other evidence" that you claim disagrees with the government's evidence.
Worse still, as discussed, Defendant Oliver's Senior News Producer, Defendant Wilson, obtained from Plaintiffs detailed information evidencing an earthquake or earthquake-like event did trigger and cause the Crandall Canyon Mine collapse.
Note the immediate caveats of an "earthquake-like event." Again, this undermines the argument that saying a government report concluded it wasn't an earthquake is somehow defamation.
They also did this despite knowing that determinations of causation are vastly complex and can take years before a reliable conclusion can be reached.
So, uh, yeah. About that. This is true, but remember, part of the joke here, from Oliver, was that Murray declared definitively in a press conference the day of the collapse that it was clearly an earthquake that caused this and not the company itself. So, if Murray's own lawyers are now admitting that this is vastly complex and "can take years," it sort of reinforces the key point that Oliver was making, that Murray himself immediately jumped to the conclusion that it was an earthquake and not his fault, when that was not at all clearly know. This filing seems to do more to undermine Murray than Oliver.
Defendants also aired a clip of congressional testimony of a relative of a former employee of Murray Energy that appeared to be dissatisfied with Mr. Murray's handling of the Crandall Canyon Mine collapse, when upon information and belief the statements of that employee were not his own, but were instead scripted by adverse counsel in a lawsuit against Murray Energy and given to the employee to further the agenda of such counsel and their clients.
Right, so this is similar to the whole dismissing the MSHA report by calling its experts "experts." Oliver accurately reported what this relative said. Who wrote it is immaterial. If what that relative said was defamatory, then Murray could go after that relative. But there's no defamation in Oliver playing a clip of Congressional testimony. Again, that's not how it works.
There's a lot more in the lawsuit, which you can read below, but it pretty much all falls into the same issues as the parts described above. It's no surprise that, looking over the website of Murray's lawyers, they don't list defamation as a specialty, but tend to focus on personal injury. There's a lot of complaining and theatricality, but very little of substance, and nothing that I can see that comes anywhere close to defamation. And that makes this a pretty clear SLAPP suit, designed to chill the speech not just of Oliver and HBO, but of any other reporters looking to cover Bob Murray and Murray Energy. This is the nature of chilling effects created by SLAPP suits. They try to punish people for actually speaking out and sharing their opinion while scaring off others from doing the same.
Once again: this is an example of why we need much stronger anti-SLAPP laws at the state and federal level. Laws that require plaintiffs to pay up for filing bogus SLAPP suits, as a deterrent. And, again, one hopes that now that he's facing such a lawsuit (which, as I've said from personal experience is no fun at all, no matter how sure you are that you're in the right), John Oliver will become as outspoken in favor of anti-SLAPP laws as he's been about other important issues.
from the please-tell-me-again-why-making-drugs-unaffordable-will-save-lives dept
Here on Techdirt we've written much about the way Western pharma companies fight for their "right" to charge unaffordable prices for medicines in emerging and developing economies. In particular, they routinely take governments and local generic suppliers to court in an attempt to shore up highly-profitable monopolies on life-saving drugs. But to be fair, it's not only poorer people who are dying as a result of Big Pharma's desire to maximize profits: Western drug companies are equally happy to charge even higher prices in richer countries -- notably in the US. That's old news. But there is a pharmaceutical saga unfolding that manages to combine all the worst aspects of this kind of behavior, and to throw in a few new ones.
It concerns something really exciting and important: a vaccine that shows great promise against the devastating Zika virus, which can cause microcephaly, blindness, deafness, and calcification of the brain in children whose mothers were infected during their pregnancy. If effective, such a vaccine could be a tremendous boon not just for developing countries, but for Western ones too, since the Zika virus has already begun to spread in the US, and Europe. The vaccine was developed at the Walter Reed Army Institute for Research, and the Department of the Army funded its development. Great news, you might think: the US public paid for it, so it's only right that it should have low-cost access to it. Moreover, as an act of compassion -- and to burnish its international image -- the US could allow other countries to produce it cheaply too. But an article in The Nation reports that the US Army has other ideas:
the Army is planning to grant exclusive rights to this potentially groundbreaking medicine -- along with as much as $173 million in funding from the Department of Health and Human Services -- to the French pharmaceutical corporation Sanofi Pasteur. Sanofi manufactures a number of vaccines, but it's also faced repeated allegations of overcharges and fraud. Should the vaccine prove effective, Sanofi would be free to charge whatever it wants for it in the United States. Ultimately, the vaccine could end up being unaffordable for those most vulnerable to Zika, and for cash-strapped states.
The Knowledge Ecology Institute (KEI), led by Jamie Love, made a reasonable suggestion to ensure that those most at need would have access to the drug at a reasonable price. KEI asked that, if Sanofi does get an exclusive deal, it should be obliged to make the vaccine available at an affordable price. The Army said it lacked the ability to enforce price controls, but it would ask those nice people at Sanofi to commit to affordable pricing on a voluntary basis. According to The Nation, those nice people at Sanofi refused. Speaking of nice people at Sanofi, the article notes the following:
Sanofi's record also includes a number of controversies related to its pricing practices, from a $190 million fine to settle charges that it defrauded Medicare and other government programs, to a $109 million fine to settle charges that it illegally provided product kickbacks to doctors. In 2014, a whistle-blower alleged the company engaged in another kickback scheme and the destruction of legal evidence. KEI maintains a comprehensive list of Sanofi's fraud fines, including the latest: a $19.9 million settlement, reached this April, for overcharging the Department of Veterans’ Affairs.
When there is an entire Web page dedicated to listing Sanofi's problems going back to 2009, you really have to wonder why the US Army is so keen to give the company a monopoly on this promising new treatment. The usual argument for the sky-high prices of drugs is that firms must be rewarded for taking on the financial risk of drug development, otherwise they won't proceed, and the world would be the poorer. Except, of course, in this case that risk was entirely borne by the US public, which paid for the early stage development of the vaccine with their taxes. So Sanofi risked nothing, but now looks likely to reap the benefits by being allowed to price the vaccine out of the reach of the people who most need it. You might think there ought to be a law against this kind of behavior. It turns out that there is:
KEI's Jamie Love pointed out that under the Bayh-Dole Act of 1980, it is already illegal to grant exclusive rights to a federally owned invention unless the license holder agrees to make it available at reasonable pricing. But that provision has rarely, if ever, been enforced.
Now would be a really great time to start enforcing that law.
Wall Street is finally starting to realize there's a storm brewing on the horizon for the nation's biggest cable companies. Cable stocks took a notable dip this week after MoffettNathanson analyst Craig Moffett downgraded the entire cable sector because of worries surrounding cord cutting and streaming video competition. Moffett, who not that long ago used to mock cord cutters for being irrelevant basement dwellers, has seen the light -- more recently noting that 2016's 1.7% decline in traditional cable TV viewers was the biggest cord cutting acceleration on record.
And in a lengthy research note to investors this week, the analyst warned that the cable industry's approach to cord cutting (raising rates and offering horrible customer service while hoping it all works out) simply isn't going to cut it given the competitive threats to come:
"Broadband growth will inevitably slow, and it will likely do so at precisely the same time that video growth rates also come under pressure from OTT substitution," Moffett said in his Tuesday-morning note. "And while cable operators have the pricing power to offset these headwinds via their broadband business, we believe it is likely that investors will (appropriately) apply a somewhat lower terminal growth rate assumption to a business that is achieving its growth through pricing rather than unit growth."
Wall Street and the cable sector's optimism in the face of a massive sector (r)evolution is running out of oxygen, Moffett insists:
"The cable stocks have climbed a wall of worry to get here," Moffett wrote to clients. “But as any mountain climber knows, the higher you go, the thinner the air."
It's an interesting position for Moffett to take, given the fact that for years the analyst breathlessly supported broadband usage caps and overage fees as a fail-safe solution to this problem, once going so far as to declare usage caps "the next generation of communications." Arbitrary and utterly unnecessary usage caps are one trick Comcast has been using to hamstring streaming competitors, while raising prices on broadband to counter any potential TV revenue loss.
For the moment, Comcast has been cushioned from the cord cutting threat by its growing monopoly over fixed-line broadband service. Companies like AT&T and Verizon have shifted their attentions to media and advertising, and other major telcos like Windstream, Frontier, and CenturyLink lack the courage, money or incentive to upgrade their aging DSL lines at any real scale. So in many markets, customers looking for next-gen broadband speeds only have one option: cable. And when they show up, they're forced to sign up for TV services they may not want.
You'd think that a growing broadband monopoly, usage caps, and the government's decision to gut most meaningful oversight of one of the least-competitive sectors in America would have Wall Street stock jocks pretty damn excited. The fact that many of them are still very worried about the cord cutting threat to come -- despite Comcast's immense position of power -- tells you precisely what kind of threat we're looking at.
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