This Week In Techdirt History: November 10th - 16th

from the do-you-recall dept

Five Years Ago

This week in 2014, the amicus briefs were rolling in on Google's first attempt to get SCOTUS to hear the Oracle case. We were surprised when Obama called for real net neutrality, and not so surprised when the broadband industry and T-Mobile's CEO and the rest of the anti-net-neutrality brigade freaked out in response. Meanwhile, Techdirt got dragged into the Roca Labs affair when Roca bizarrely sued Marc Randazza largely over a post we wrote, just before it began issuing bogus DMCA notices to Google over PissedConsumer reviews. This was also the week we launched the Techdirt podcast.

Ten Years Ago

This week in 2009, a Danish anti-piracy group was withdrawing all its lawsuits against individuals after it lost most of them, though this just spurred the IFPI to say it would start seizing computers to get more evidence. The UK was moving towards forcing ISPs to retain user data and kicking people off the internet, while Rupert Murdoch was audaciously claiming that fair use could be struck down entirely by the courts, and we took a look at how a lot of Murdoch's own websites contained aggregators just like the ones he was so angry about. Verizon started passing on RIAA letters to users, the MPAA got a town's public wi-fi shut down over one single unauthorized movie download, and we looked closer at Bluebeat's bizarre "psycho-acoustic simulation" copyright claim on Beatles songs.

Fifteen Years Ago

This week in 2004, Monster Cable was establishing its reputation as a trademark monster, Blockbuster was making the questionable decision to buy more stores, and the entertainment industry just couldn't quite give up on self-destructing DVDs. The deluge of video ads on the web was just beginning, though it probably wasn't yet quite as annoying as AOL's very stupid TV commercials. The notion of selling instead of going public was becoming mainstream for tech startups, and Google's not-so-revolutionary IPO was not kickstarting the Dutch Auction trend many people expected. And lastly, this was the week Firefox officially hit version 1.0.

Filed Under: history, look back

Richard Liebowtiz's Lawyer To Judge: Please Excuse His Lying To The Court Since He Doesn't Really Know How To Law

from the say-what-now? dept

Earlier this week we already covered infamous and oft-sanctioned copyright troll lawyer, Richard Liebowitz, showing up in court to explain to the judge why he lied about the timing of the death of his grandfather multiple times over the course of many months as he tried to explain away why he missed a discovery conference. As we noted, Liebowitz actually showed up in court this time (good call, considering that the judge made it clear she was considering sending him to jail), and brought a lawyer with him (also a good call). He did remain out of jail, though Judge Cathy Seibel noted that she had referred the matter to the Grievance Committee, which could lead to sanctions. She also warned that her various contempt rulings against Liebowitz will require him to disclose the sanctions both to other courts and to prospective clients.

At the hearing, it was mentioned that Liebowitz's newly found lawyers, had sent a letter to the judge, but that letter was not public yet. Late yesterday, the letter was finally added to the docket and I don't think I've ever seen anything quite like it. You can pretty much tell that the lawyer writing the letter, Richard Greenberg, admits, that he has just been brought into this shit show of a situation, and has decided the best strategy is to throw himself on the mercy of the court. And, apparently, Greenberg decided the best way to do this is to treat Liebowtiz as if he's a little kid who just didn't know any better that lying to a judge is a bad idea. It honestly does read like the kind of note a parent would write for a kid, so I have to admit that this little tidbit at the end of the letter puts much of the rest of it in context:

Counsel has known Richard and his family for years, even as long ago as Richard's Bar Mitzvah, and will always be available to render advice and guidance to Richard, and counsel will advise Richard to make use of this resource more often.

In other words, it sounds like Greenberg is a friend of Richard's family, and much of the letter then does read as if he's referring to a naughty kid, not an actual lawyer with years of experience. So much of the letter is quite insane, but it seems to focus on how little experience Richard actually has, such that he might not know that lying to a judge and making up excuses is a bad idea.

Richard's Background. Richard is an unmarried 31-year-old who resides with his parents in Hewlett, New York. He graduated with a BA degree in communications from the University of Pennsylvania in 2010, and with a J.D. degree from Hofstra University Law School in 2014. In 2015 he was admitted by the Second Department to the Bar of the State of New York, and in the same year he opened the Liebowitz Law Firm, located at 11 Sunrise Plaza, Valley Stream, New York, where he has practiced continuously ever since. Richard has had no other employment, experience or supervision as a lawyer.

Right. I get that Liebowitz may not know all the nuances and ins and outs of litigation and such, but the whole paragraph makes it sound like he's a dumb child, rather than a 31-year-old man with a law degree, who has been practicing before the court in a huge number of cases. And this wasn't about some sort of sophisticated nuanced issue. This was about lying to a judge. No offense, but you don't have to have a law degree to know that's a bad idea and he does have a law degree.

After first making it sound like Richard is a clueless, inexperienced idiot, he then immediately claims that Richard has a growing law firm, even employing experienced lawyers, and has filed approximately 2,000 cases. So, uh, which is it? Is he a clueless, inexperienced rube, or an experienced lawyer who employs other lawyers who actually know better?

Since its opening, Richard's law practice has grown exponentially, filing approximately 2000 law suits under the federal copyright statute in the four years of his firm's existence. Moreover, because of his burgeoning practice, Richard's firm has grown commensurately; he now employs a staff of 12, two of whom are lawyers, including an associate with large commercial firm experience.

So... he does know other lawyers and has lots of experience. So, the whole "don't lie to a judge" thing is the sort of thing that maybe he should have known about? But then Greenberg reverts back to Liebowitz being an inexperienced newbie... while also insisting that he "fills a need" by filing bullshit lawsuits to shake down people for money.

In short, while Richard is short on legal experience and training, he obviously fills a need in the ranks of freelance photographers who struggle to make ends meet financially...

Greenberg later admits that he, himself, is not very experienced or knowledgeable regarding copyright law, so perhaps he doesn't know the nature of copyright trolling and the problems that trolls like Liebowitz create for tons of people. Perhaps he also doesn't know the details of how frequently Liebowitz has been called out or sanctioned by judges. But all of that seems to matter here, and chalking up his lying to a judge multiple times over many months to his "inexperience" seems... questionable at best.

The letter is, at least, straightforward in admitting that Liebowitz lied to the judge, and tries to explain his possible reasons for lying, but they're not very good reasons. Hilariously, the letter says there are no excuses, but then tries to argue that Liebowitz's decision to lie is "understandable" even if (and I kid you not) he did it intentionally.

There can be no excuse for Richard's lapse, whether he stated and maintained the erroneous date of death mistakenly or intentionally. Either would be understandable. For example, Richard may genuinely have misremembered the date of death, and continued to adhere to the April 12 date or, having taken the position that the date of death was April 12, he saw no reason to question his memory or why it should matter. On the other hand, Richard may have thought the Court would not understand his dysfunctional, grieving state originating three days before the conference, and decided to fix the date of death as the morning of the conference. If the latter explanation is the correct one, Richard not only misjudged the Court's knowledge, experience and decency, no doubt as an inexperienced young lawyer might, but he engaged inexcusable falsity, however immaterial.

And, apparently, the lawyer who has filed "approximately 2000 cases," many of them demanding insane sums of money from people over questionable claims of copyright infringement, is now claiming that the small amount the court has fined him is a "high price" to pay. Yeah right.

Of course, either way, Richard has paid a high price for his failure of memory or falsity concerning the true date his grandfather died. The incidence has been a financial disaster. Richard will have paid to the Clerk of the Court $3700 in financial penalties for his alleged contempt; he has paid adversary counsel for his adversary's wasted time at the conference which Richard failed to attend; and Richard has paid thousands of dollars in attorneys fees for counsel's representation in this contempt matter. Nor is financial loss the only adverse consequence. Richard has suffered horrible publicity as a result of being held in contempt and threatened with incarceration by this Court. And of course Richard, a young and inexperienced lawyer, is scared of the damage to his professional career as a result of his conduct in these proceedings. At the risk of appearing to minimize the seriousness of this matter, which counsel would not dare to do, counsel urges this Court to find that Richard has suffered or been penalized enough for his lapse or misconduct.

The fact that Greenberg keeps trying to suggest this may have been a "lapse" is pretty ridiculous -- as his unwillingness to recognize the whole reason why the judge was so concerned with Liebowitz's claims in the first place: that this is not the first or second time that Liebowitz has been called out by courts for some fairly basic failures. Greenberg then notes that he's "recommended that Richard seek psychotherapy to understand and ameliorate the anxieties, tensions and infrequent lapses of Richard's demanding practice" as well as that he "enroll in a CLE course addressing small law firm management." He also recommends that Liebowitz find an experienced copyright lawyer to advise him.

As noted, the letter is truly astounding in the way it talks about Liebowitz as if he's a small, clueless child, while at the same time trying to claim that he's an important lawyer with a huge and growing practice... but somehow too ignorant to recognize that lying to a judge at least ten times in court filings was a bad idea. As the judge noted at the hearing after this letter was sent:

[Judge Cathy] Seibel stated that Liebowitz knew he was lying about the date of his grandfather’s death, but “chose to repeat that lie six, eight, ten times” in court filings that the jurist said were part of a “long-term campaign of deception.” Liebowitz, Seibel remarked, “double-downed, triple-downed, quadrupled-downed, octupled-down, I don’t know what would come after that.”

“I question Mr. Liebowitz’s fitness to practice,” Seibel said at one point during the hearing.

I can recognize the tough position that Greenberg was put in, especially as it appears that this family friend was retained just days before the letter needed to be sent, but the entire premise of the letter is so ridiculous that it is difficult to believe there wasn't a better way to throw oneself on the mercy of the court.

Filed Under: copyright, copyright troll, lying to court, richard greenberg, richard liebowitz

Appeals Court Denies Qualified Immunity To Cop Who Argued Citizens Have No Right To Defend Themselves Against Armed Intruders

from the play-no-knock-games,-win-no-knock-prizes dept

The Fourth Circuit Court of Appeals has denied immunity to a cop involved in a no-knock raid that left the raided house's resident, Julian Betton, paralyzed. This case was touched on briefly in a previous post discussing legal arguments made by law enforcement officers that attempt to portray people in their own homes as dangerous aggressors when police crash through their doors unannounced.

In this case, South Carolina police officer David Belue's legal rep tried to tell the court Betton's response to a bunch of heavily-armed men rushing through his door -- grabbing a gun and moving into the hallway from the bathroom -- created a situation where Betton deserved every bullet fired at him by officers. In other words, if Betton didn't want to get shot, he shouldn't have been in his own house when it was invaded by officers who never informed him they were police officers.

Here's a recap of the events leading to the lawsuit, from the Fourth Circuit's decision [PDF]:

In the afternoon of April 16, 2015, a team of plain-clothed law enforcement officers armed with “assault style rifles” used a battering ram to enter Julian Ray Betton’s dwelling to execute a warrant authorizing a search for marijuana and other illegal substances. The officers did not identify themselves as “police” or otherwise announce their presence before employing the battering ram. From the rear of his home, Betton heard a commotion but did not hear any verbal commands. Responding to the tumult, Betton pulled a gun from his waistband and held it down at his hip.

Three officers, including Myrtle Beach, South Carolina police officer David Belue, fired a total of 29 shots at Betton, striking him nine times. Betton suffered permanent paralysis resulting from his gunshot wounds.

This shooting was immediately followed by a bunch of lies. Officer Belue first claimed Betton fired his gun at officers. The ensuing investigation showed Betton's weapon was never fired. Faced with this direct contradiction of his statement, Officer Belue revised his, claiming Betton pointed his gun at officers. According to Betton, he never got the chance to point a gun at anyone. The moment he appeared with his gun, officers opened fire.

Officers also lied about their entrance to Betton's home. They claimed they knocked and announced their presence. Betton's surveillance camera told the real story. Nine seconds elapsed between the officers' arrival on Betton's lawn and their entrance into his house. None of the officers present appeared to announce anything before bashing down his door and swarming inside.

Officer Belue also initially had asserted that the agents had knocked on Betton’s door and announced their presence, and had waited before forcibly entering the home. However, footage from the video cameras on Betton’s front porch showed that the officers had not knocked on the door or announced their presence, and had not waited any length of time before using the battering ram to gain entry.

To the contrary, the video recordings showed that the officers ran up the front steps and immediately began using the battering ram. Moreover, Garcia confirmed that the officers did not announce that they were law enforcement personnel before entering the home. The record before us also contains a statement from a former DEU agent, who related that the DEU agents “almost always forcibly entered [residences] without knocking and announcing” their presence.

Despite this -- and despite inverting the Castle Doctrine to say its the invaders of a home who need protection from the home's occupants -- Officer Belue still sought qualified immunity. The district court denied his request, pointing to the facts still in dispute, as well as the officer's actions.

Regarding Betton’s unlawful entry claim, the magistrate judge found that the officers had not knocked or announced their presence before entering, and that there were no exigent circumstances warranting abandonment of the “knock and announce” procedure. The district court adopted the magistrate judge’s recommendation to deny qualified immunity on the unlawful entry claim, and Officer Belue has not challenged this ruling in the present appeal.

With respect to Betton’s excessive force claim, the magistrate judge found that there were material facts in dispute regarding whether Betton had pointed a gun at the officers before Officer Belue fired his weapon. Thus, the magistrate judge concluded that a jury could find that Betton did not pose an immediate deadly threat to Officer Belue or others justifying the use of deadly force.

The Appeals Court sees no reason to upend this finding, especially when there's precedent on point saying actions like this clearly violate Constitutional rights.

[A]s of 2015, the law in this Circuit was clearly established that a person is entitled to be free from excessive force when the person “is on his property or in his residence, is in possession of a gun that he is not pointing at police officers, and is not given a warning or command to drop the gun before he is shot.”

Officer Belue also argued Julian Betton was so inherently dangerous it didn't matter whether officers announced themselves or ordered him to put his weapon down before opening fire. This claim basically turns Betton's mere existence into an exigent circumstance where Constitutional rights no longer apply. The Appeals Court isn't interested in advancing this terrible legal theory.

[N]o information in Betton’s criminal history suggested that he was inherently violent to a degree that the officers would have been justified in storming into his home unannounced and in firing their weapons at him when he did not present a current threat. Notably, the search warrant was based on Betton’s conduct of selling small amounts of marijuana on two occasions. And, although the informant observed security cameras and two firearms in Betton’s home, there was no evidence indicating that Betton had engaged in threatening or violent conduct toward the confidential informant.

Betton's case goes back to the district court and Officer Belue will have to face a jury if he doesn't attempt to settle this lawsuit first. Denying immunity preserves the rights of homeowners to defend themselves from unexpected intruders in their homes. Officer Belue's attempt to separate one action (his shooting of Julian Betton) from another of his actions (entering a home unannounced) is soundly rejected. Even when an officer subjectively "fears for his safety," context matters. If officers want to use the element of surprise to their advantage in no-knock raids, they can't turn around and claim residents have no right to react with alarm to armed intruders.

Filed Under: 4th circuit, david belue, julian betton, myrtle beach, no knock raid, qualified immunity, south carolina

Big News: Supreme Court To Hear Google v. Oracle Case About API And Copyright

from the this-is-important dept

Some big news out of the Supreme Court this morning, as it has agreed to hear the appeal in the never-ending Oracle v. Google lawsuit regarding whether or not copyright applies to APIs (the case is now captioned as Google v. Oracle, since it was Google asking the Supreme Court to hear the appeal). We've been covering the case and all its permutations for many years now, and it's notable that the Supreme Court is going to consider both of the questions that Google petitioned over. Specifically:

1. Whether copyright protection extends to a software interface.

2. Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.

As you may recall, the Supreme Court refused to hear Google's appeal back in 2015, which was just focused on the first question above, regarding whether or not an API was copyright-eligible. So it's quite interesting to see that it will now review that question. As you may recall, after the Supreme Court refused to review that point, the case went back to the district court where Google's use of some of the Java API was deemed to be fair use, which was a funky sort of way for the jury to recognize that there never should have been copyright on the API in the first place.

To me, as I always point out in this case, the key element will be getting the Supreme Court to recognize that an API is not software. Oracle and its supporters keep trying to insist that an API and executable code are one and the same, and I worry that the Supreme Court will not fully understand the differences, though I am sure that there will be compelling amici briefs trying to explain this point to them.

You never can tell how the Supreme Court will come down on these issues. The court has been tragically bad on copyright over the past few decades (with a few exceptions). But it's also repeatedly smacked down bad rulings from the Federal Circuit, which is where this case is coming from. So perhaps that additional skepticism over CAFC's nutty interpretation of the law will help them review this issue carefully.

Filed Under: android, api, copyright, fair use, java, supreme court
Companies: google, oracle

Journalists Publish List Of Convicted Cops The State's Attorney General Said Was Illegal For Them To Have

from the bluff-called dept

The list of convicted cops the California Attorney General tried to keep secret has just been made searchable by the Sacramento Bee. It contains hundreds of current and former police officers who've been convicted of criminal acts over the last ten years.

This collaboration of multiple newsrooms and journalism advocates began with an unforced error by a state agency. Taking advantage of a new state law allowing the public to access police misconduct records, journalists asked the California Commission on Peace Officer Standards and Training for relevant documents. The agency handed over a list of 12,000 former and current officers -- a list that apparently was never supposed to be made public.

The state's Attorney General claimed the journalists had broken the law simply by possessing a document the Commission never should have given them. This couldn't be further from the truth, but AG Xavier Becerra continued to make this claim, as though it were possible to codify something just by saying it out loud often enough.

I can see why AG Becerra wants this list buried. There's nothing on it that makes cops or their oversight (which includes Becerra) look good. While the 12,000 officers in the database are a small percentage of the total number of California law enforcement officers employed over the past ten years, this small portion includes a number of cops who were never fired from their agencies despite committing criminal acts that would have put regular people out of a job.

Reporters found at least a dozen deputies with prior convictions are still on the roster at the Los Angeles County Sheriff’s Department. And the five officers with convictions working for the Riverside police include the acting chief — Larry Gonzalez was a lieutenant in 2013 when he pleaded guilty to DUI after reportedly crashing a city-owned SUV with a blood-alcohol level nearly twice the legal limit.

There’s a Kern County Sheriff’s deputy still working despite a conviction for manslaughter after running over two people while recklessly speeding to a call. And a Santa Clara County Sheriff’s deputy is back on the force after dozing off at the wheel and killing a pair of elite cyclists on a training ride.

Sheriff's departments are especially fond of hiring and retaining the worst people. They're the agencies most willing to overlook long histories of misconduct and the most hesitant to hand down significant punishments when laws are broken by law enforcers on their payroll. The L.A. Sheriff's Department is filled with suspicious individuals who hang out in a high crime area every time they show up at the office.

The list has been trimmed considerably since its surprising release to journalists. Due to the lack of cooperation from law enforcement agencies and the general sloppiness of large-scale bureaucracies, the names in the database are only those that have been verified by journalists. The original list had 12,000 names but the database only contains 630 current and former officers.

Even so, there's plenty to be concerned about. Some officers have multiple convictions but were never fired. Officers have driven drunk, left their children in cars with their loaded guns, and engaged in fraud. There's also lots of domestic abuse -- most of which has gone unaddressed by officers' employers.

Richard Sotelo was an Imperial County Sheriff’s Department correctional officer in February 2013 when he was charged with domestic violence for assaulting his estranged wife. He was allowed to keep working despite the pending charges. But months later he was accused of a crime again, this time sexual battery against a male co-worker. He was charged for that as well. Sotelo ultimately took plea deals and was convicted in both cases and left the force.

[...]

In one incident investigated by the Bell Police Department months before his reckless driving, [LAPD Officer David] Guerrero allegedly “threatened, assaulted and battered” a woman who was in a dispute with his girlfriend, according to court records.

“That’s how you do it, LAPD style,” Guerrero allegedly said as he drove away.

The DA’s office didn’t file charges. It also didn’t prosecute Guerrero in 2013 when he allegedly threatened to kill the mother of his child, court records show.

The recycling of California cops isn't going to stop unless the state legislature steps up and makes it possible for officers to lose their certification following a conviction. California is one of only five states with no decertification process, so officers can avoid accountability simply by drifting from agency to agency in the (apparently unlikely) event they've been fired. A few more firings will probably occur as a result of increased access to misconduct records, but that's hardly going to budge the needle when some agencies in the state have shown they don't feel staffing their departments with known criminals is a problem.

Filed Under: california, database, journalism, police, xavier becerra

Court To Racist Douchebags: It's Not Defamatory For A Newspaper To Call You 'Racist Douchebags'

from the how's-all-that-racism-and-douchebaggery-working-out-for-you dept

When is it defamatory to call people "racist douchebags?" Well, let's start with the "douchebag" part. This is always a statement of opinion and never actionable. Calling someone (in this case, several someones) a "douchebag" is like calling them an "asshole." It's not something that is possible of defaming anyone since it's always, without exception, a statement of opinion.

Calling someone a racist is almost always a statement of opinion. Unlike calling someone a felon or a child molester, claims of racism are based on perception. This makes them closer to a statement of opinion than an actionable fact.

So, calling people "racist douchebags" isn't defamatory. And it certainly isn't defamatory in a situation like this, where the group of people being called "racist douchebags" acted like racist douchebags. In this case, six members of a South Carolina high school football team sued the Charleston City Paper for calling them "racist douchebags." The events leading to the Charleston paper's column were filled with douchebaggery of the racist variety. (h/t Adam Steinbaugh)

Here's the super-dry take on the events from the South Carolina Appeal Court's decision [PDF] -- a take made even drier by the school's press conference statements.

Superintendent McGinley asked the School District's diversity consultant, Kevin Clayton and Associate Superintendent Louis Martin to conduct the investigation. Mr. Clayton and Mr. Martin interviewed the students on the football team and the coaches. The investigation revealed that "players would gather in a circle and smash the watermelon while others were either standing in a group or locking arms and making chanting sounds that were described as 'Ooo ooo ooo,' and several players demonstrated the motion." Superintendent McGinley stated the AMHS team named the watermelons "Bonds Wilson" and drew a face on each watermelon "that could be considered a caricature."

Some football players had created their own post-game ritual of demolishing a watermelon bearing the name of the defeated school while making monkey noises. Most of the schools this predominantly-white school faced during the football season were predominantly black. The "Bonds Wilson" referenced on this particular watermelon was the name of a segregated school that used to be located on the campus where Academic Magnet High School is located. It was named after two African-American educators. The students demolishing the "Bonds Wilson" watermelon were AMHS students.

The paper's op-ed opened with this paragraph, which triggered the football players. (And the lawsuit.)

Today, Charleston was consumed by one story and one story only: the removal of Academic Magnet football coach Bud Walpole amid allegations that his players more or less behaved like racist douchebags. And if there's one lesson to be learned from all of this[,] it's this: big toothy grins, watermelons, and monkey noises don't mix. Any sensible person can see that.

It went on to point out any of the adults overseeing AMHS's students and football team could have stopped this. But no one did until the ritual became public knowledge.

The point is that an entire team of players thought it was OK to draw a grinning face on a watermelon, smash it on the ground each time they beat a largely black team, and make monkey noises—and no one apparently told them to stop.

No one said, "Hey guys, I know not a single one of you has a racist bone in your body, you know, because that's a bad thing, and well, you're an Academic Magnet kid, and you come from a good middle-class white family and you're going to college, and there's no way in hell you'd, you know, draw a racist caricature on a watermelon and make monkey noises and do it fully aware of, like, what all that stuff means, because if you did, knowing all that stuff, then yikes, people might start thinking you're racists. Hell, I'd think you're a racist, and, well, I just don't know if I can deal with the fact that Charleston's best and brightest students are racist douchebags. I mean, it's just a joke right? Right?"

The paper's publisher argued these statements were protected speech. It noted the columnist had formed his opinions based on the students' actions as depicted in statements made by the school during its press conference. Those facts led the columnist to the conclusion the students acted like "racist douchebags" and the football coach at least implicitly condoned racist douchebaggery.

The students hilariously argued this was actual malice, engaged in by the paper "without any investigation, without any evidence, without anything to come to that conclusion." Perhaps the plaintiffs failed to attend the press conference in which the school said football players were demolishing watermelons painted with the names of predominantly-black schools while making monkey noises.

This was not the students' stupidest argument. This one is:

Appellants asserted the players' motives were not racially based but more akin to the movie Castaway where Tom Hanks drew a face on a volleyball and named it "Wilson;" here, the football players drew a face on the watermelon and named it "BondsWilson."

Oh, OK. [Recalls classic scene in "Castway" where Hanks' character beats the hell out of "Wilson" while conjuring Jim Crow imagery.]

The court could not disagree more. It upholds the lower court's decision by pointing out obvious things about defamation law that the plaintiffs' lawyer should have used to dissuade them from suing.

First, the circuit court found that all of the factual statements in the articles were "accurate reproductions of comments made publicly by School District officials, and thus [were] protected by the fair report privilege." Next, the circuit court found the remaining statements in the articles were "merely expressions of the writer's opinions and ideas on a matter of public concern. Under established First Amendment jurisprudence, Jones Street [Publishers] cannot be held liable for such statements."

[...]

The court indicated that it was "settled law that expressions of opinion on matters of public concern are immune from liability for defamation." The court noted that once the factual statements in the articles that summarized the statements made by the School District are removed, none of the remaining statements "assert[] any verifiable, objectively provable fact. They are expressions of the editorial writer's ideas and opinions, using rhetorical hyperbole to emphasize his views."

More simply put:

We do not find that the term "racist douchebag" can "reasonably [be] interpreted as stating actual facts" about Appellants.

Especially when, as the court notes, even the plaintiffs agreed that declaring something or someone to be "racist" is a matter of opinion. A footnote contains statements made by the players and coach in court that attest to the Appeals Court's stated fact:

Appellant Adam Ackerman was asked, "Do you believe that whether or not something is racist is a matter of opinion?" Appellant replied, "It is a matter of opinion."

Appellant R.M. was asked, "[D]o you think that people can have different opinions as to what is racist?" Appellant responded, "Absolutely."

Appellant C.F. was asked, "Do you think whether or not the watermelon ritual, the perception of the watermelon ritual, whether or not that's racist is a matter of opinion?" Appellant responded, "[I]t is a matter of opinion, but it's also—it's an opinion generated on what you've heard."

Appellant Coach Walpole was asked, "Who determines whether or not something is racist?" Appellant responded, "It's up to the—it depends on what it is, up to the individual interpretation, I don't know."

More inadvertent hilarity. In their effort to prove they weren't "racist douchebags" by claiming they didn't believe beating watermelons bearing black school names while hooting like monkeys was racist, the appellants made it clear the labeling of something or someone as "racist" is a matter of opinion, not a statement of fact. Trying to rid themselves of the "racist douchebag" label only made it easier to apply and even less likely to result in a victory.

There's nothing here for the "racist douchebags." They will continue to be "racist douchebags" upon their return to the lower court where their lawsuit will be dismissed. Maybe they'll continue to be "racist douchebags" long after the last check to their representation has cleared. Who knows. But for at least one awful night in South Carolina, they were racist douchebags.

This douchebaggery might have faded into the background months ago, but the plaintiffs desire to be proven right apparently outweighed their desire to put this racist activity behind them. Welcome back to the news cycle, douchebags.

Filed Under: 1st amendment, charleston, defamation, free speech, opinion, racist douchebag, south carolina
Companies: charleston city paper

Daily Deal: .TECH Domain Name 5 or 10 Year Subscription

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

Whether you're part of a tech startup, project, or event, a .TECH domain will give your brand the positioning it needs to stand out online. Globally influential brands, like Consumer Electronics Show, Intel, and Viacom, have adopted .TECH domains. These domains have also become the de facto online address for individual programmers working on passion projects, and for industry leaders launching tech initiatives, industry blogs, and more. A 5 year subscription is on sale for $40, and a 10 year subscription is on sale for $60. Use the code BFSAVE15 for an additional 15% off.

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Filed Under: daily deal

Giant Publisher Macmillan Goes To War Against Libraries

from the wtf-is-wrong-with-macmillan? dept

We've joked in the past that, given the insane state of copyright maximalism, if libraries were invented today, it's quite clear that book publishers would insist they were dens of piracy and had to be stopped at all costs. It is, at best, the luck of history that libraries got "grandfathered" in before copyright system maximalists went completely out of their minds. But, in fact, copyright holders still do appear to hate libraries and wish they'd go away. Case in point: publishing giant Macmillan, which has decided that libraries shouldn't be lending ebooks any more. Back in July it announced a new plan, starting November 1st, to "embargo" ebooks offered to libraries.

If you're not already aware, most libraries offer ebook lending -- which gives borrowers temporary access to an ebook, just like borrowing a hard copy library book. I use this all the time to borrow ebooks from my local library (which has also resulted in my buying permanent copies of many of those books). However, Macmillan has decided to crack down on the practice. In a letter to authors defending this move, Macmillan claimed that library ebook lending was cutting into its bottom line:

One thing is abundantly clear. The growth in ebook lends through libraries has been remarkable. For Macmillan, 45% of the ebook reads in the US are now being borrowed for free from libraries. And that number is still growing rapidly. The average revenue we get from those library reads (after the wholesaler share) is well under two dollars and dropping, a small fraction of the revenue we share with you on a retail read.

And so, Macmillan has decided to fuck over libraries and library patrons:

The terms: We will make one copy of your ebook available to each library system in perpetuity upon publication. On that single copy we will cut the price in half to $30 (currently first copies are $60 and need renewal after two years or 52 lends). This change reflects the library request for lower prices and perpetual access. Additional copies of that title will not be available for library purchase until 8 weeks after publication. All other terms remain in place. It is important to note that the 8-week window only applies to ebooks; the library can order as many physical books as they like on publication. It is a window for only a single format.

The key thing here is only allowing a single ebook to be purchased by a library for that 8-week period, meaning that it will be nearly impossible for most patrons to borrow those books (assuming a standard library lend is 2 weeks, renewable for another 2 weeks, this means only 2 to 4 patrons are likely to be able to borrow those books when first released).

In September, librarians around the US launched a campaign -- ebooksforall.org urging Macmillan to rethink this awful plan:

This embargo limits libraries’ ability to provide access to information for all. It particularly harms library patrons with disabilities or learning issues. One of the great things about eBooks is that they can become large-print books with only a few clicks, and most eBook readers offer fonts and line spacing that make reading easier for people who have dyslexia or other visual challenges. Because portable devices are light and easy to hold, eBooks are easier to use for some people who have physical disabilities.

Macmillan is the only major publisher restricting public libraries’ ability to purchase and lend digital content to their communities. Before the embargo took effect, we collected 160,000 signatures from readers who urged Macmillan not to go through with their plan. And we delivered these signatures in person to CEO John Sargent. Sadly, he did not listen.

Indeed, he absolutely did not listen. Instead, he went forward with the plan and is defending the embargo by comparing it to "movie windows" -- the almost universally hated practice of Hollywood to release movies first in theaters before bringing them to home video and other platforms:

“He likened the e-book marketplace to that for major motion pictures in that new releases have the greatest value in their first few weeks and their initial release should allow for the greatest return on both creative and business investment. The availability of e-books through libraries, which may be perceived as being free, is, in Macmillan’s opinion, the major driver in the consumer decline.”

Sargent also repeated another “oft-stated claim,” the release states—that e-book availability through libraries “devalues” the book.

This is nonsense on multiple levels. First, Hollywood has been learning just how damaging windows are over the past few decades, because they more frequently create incentives for piracy and generally piss people off. It's why the windows have continued to shrink (drastically), and more and more films are moving to so-called "day and date" releases with no windows at all. In other words, he's moving in the opposite direction of the very industry he claims he's modeling his new plan on.

Second, the "devalues" claim is just bullshit. It's one that all copyright maximalists like to throw out there when complaining about "free" or cheap competition and it's hogwash. It's about market segmentation, and limiting access to books via libraries is a giant fuck you to the reading public. Besides, as the libraries point out, given that ebooks are only loaned out 3 to 4 times over those 8 weeks, and libraries would need to pay $60 per later copy, Sargent's math makes no sense at all.

“Typical e-book loan periods are 2–3 weeks,” noted COSLA president and Hawaii State Librarian Stacey Aldrich. “It is unlikely that a single e-book purchased by a library at 3 or 4 times the cost of a consumer book would circulate more than 2.5 times in the first eight weeks, so the drain on potential buyers is insignificant during the e-books’ most valuable selling period.”

“Libraries pay higher prices for e-books," added Cindy Aden, chair of COSLA’s e-book engagement group and Washington State Librarian. “We question the logic that a publisher would achieve significant revenue from restricting sales to libraries. In our experience, few readers faced with wait times for a new release would choose to purchase the book directly instead of waiting, even if those wait times are significant.”

Further, “contrary to the assumption stated by Mr. Sargent that availability through libraries negatively impacts book sales,” the release goes on, “COSLA believes that library availability builds readership, increases awareness of authors, publishers, booksellers and the entire ecosystem, thereby positively impacting sales.”

Librarians are (quite understandably) furious about all of this. Librarian Wendy Crutcher has an excellent post directed at Macmillan called "Libraries are Not the Enemy" that is well worth reading in its entirety. Here's a snippet:

Libraries aren’t the competition nor are we unreasonable. We get that publishers need to turn a profit and we want authors to make a living. Libraries aren’t the problem; the problem is competition from other distractions and the now-set reader expectations that eBooks shouldn’t cost more than $2.99. Libraries didn’t do that. We’re literally creating demand for the product. One of our cornerstone principles is to create lifelong, enthusiastic readers and learners. Plus there’s actual data that library users are also book buyers.

The worst part about all of this is that this policy is no good for anyone, well, other than Amazon who will benefit mightily by driving a larger wedge between publishers and libraries. Any policy that limits access to new books hurts readers, it hurts authors, and it hurts the publisher.

Oh, sure, some readers will get frustrated and simply buy the book, assuming they have the means to do that. However, the more likely outcome is that readers will get frustrated, simply move on, and forget about the book entirely to the point of never reading it. Which is not what we want at all.

The reality seems to be that, as the joke goes, copyright maximalists just see libraries as dens of piracy that need to be stopped. We've seen this before. Publishers have massively jacked up the prices of lendable ebooks (note the $60 price above), they've built in "expiring" licenses so that those expensive purchases can only be loaned out a limited number of times. And now they're limiting how many licenses can be purchased by a single library.

This is an attack on libraries for no good reason, other than publishers hating the concept of "free" access to books.

Filed Under: competition, copyright, ebooks, lending, libraries
Companies: macmillan

Impeachment Hearings Highlight More Trump Phone OPSEC Failures

from the ill-communication dept

Plenty has been made of the President's unwillingness to adhere to anything close to reasonable security when using his mobile phones. Whereas the Defense Information Systems Agency (DISA) and the National Security Agency usually work in concert providing state leaders with "hardened" devices that are heavily encrypted, routinely updated, and frequently swapped out, Trump has refused to use these more secure DMCC-S devices (effectively a Samsung Galaxy S4 device utilizing Samsung's Knox security architecture) because they apparently infringe on his ability to Tweet.

Just a few months ago, Senators sent a letter expressing concern that Trump's mobile phone practices were leaving the President open to potential hacking by foreign entities:

"The President of the United States stands alone as the single-most valuable intelligence target on the planet. Given the apparent lack of progress the Administration has made since initial reports in 2016 of the President’s poor operational security, it appears the only thing standing between the Office of the President and the next national security nightmare is a combination of President Trump’s personal restraint and sheer luck."

Eventually, the President was convinced to use two iPhones: one locked down specifically for Twitter, and the other specifically tasked with making phone calls. Even here reports have suggested that Trump has struggled to adhere to these restrictions, often making personal calls on his unsecured Samsung Galaxy III.

This week in testimony before the House Intel Committee, diplomat William Taylor testified he had recently learned of a call between US/EU ambassador Gordon Sondland and President Trump while at dinner at a restaurant in Kiev. The conversations regarded Trump's efforts to pressure Ukraine to help him dig up dirt on Biden, though security experts were more concerned by another aspect of the revelation; namely the idea that the President was openly discussing sensitive issues -- in public -- on foreign cellular networks:

"There are a ton of risks there, but some of the biggest involve the fact that the call is traversing the foreign country's telco,"said Jake Williams a former National Security Agency operator and founder of Rendition Infosec. "Even if you trust that country not to spy on their own telcos, others probably have. There's a non-zero chance that some country (or multiple countries) are getting call data records (CDR). This definitely would have made for increased targeting on Sondland and his contacts. Honestly, if I saw that in CDR collection, my first thought would be, 'That has to be a troll, right?' That would be immediately followed by, 'Get full voice coverage on his phone (and everyone around him). These guys don't understand OPSEC."

Needless to say, having phone calls in public restaurants over foreign cell networks is considered a no no in security circles:

"During that call with Gordon Sondland, the U.S. ambassador to the European Union, Trump spoke so loudly about “the investigations” that someone in the restaurant who was not on the phone could hear his words, according to Bill Taylor, the senior American diplomat in Ukraine.

It is highly likely that others were listening too. Russia’s intelligence services have previously demonstrated the capability to intercept the phone calls of American diplomats in Ukraine and make recordings that can be used to compromise or embarrass those officials."

Granted there's a universe of other ways that foreign and US intelligence can and do spy on public officials even if you're using an encrypted connection, from the use of IMSI catchers to the exploitation of the longstanding SS7 flaw we've long noted nobody seems interested in fixing:

Like so many tech issues, the stupidity will get lost in partisan fisticuffs, with the President's supporters taking such deep offense at the idea the President is terrible at security that they'll mindlessly discount this as just more unfair partisan criticism they don't have to pay attention to. But reality doesn't care, and report after report has made it pretty damn clear the President of the United States has garbage-level OPSEC that no level of hand holding appears capable of mitigating.

Filed Under: donald trump, gordon sondland, op sec, phone calls, security, ss7, william taylor

Elsevier Gets Sci-Hub And LibGen Blocked In Austria, Thereby Promoting The Use Of VPNs And Tor In The Country

from the thanks-for-spreading-the-word dept

Sci-Hub describes itself as "the first website in the world to provide mass & public access to research papers". At the time of writing, there were 77.5 million academic papers available on the site. Many, perhaps most, of them were funded by taxpayers, through government grants to researchers working at educational institutions. The person behind Sci-Hub, Alexandra Elbakyan, presumably sees her site as a way of letting people have access to the work they paid for. The publishing giant Elsevier doesn't agree. For some reason, it seems to think it has a right to a profit margin of 35-40% arising from its role as a gatekeeper to the papers that the public has paid for.

The resulting David and Goliath battle between Sci-Hub and Elsevier has been raging for years, and follows a predictable pattern. Elsevier spends lots of money getting a court somewhere to shut down one way of accessing Sci-Hub, and the latter simply finds an alternative -- by moving to a new domain, for example. As TorrentFreak reports, Elsevier has just "won" another pointless legal battle:

Publishing giant Elsevier has emerged as a major player with arch-rivals Sci-Hub ('The Pirate Bay of Science') and Libgen (Library Genesis) as its key targets. Late last week, Austrian ISP T-Mobile revealed that it had begun blocking several Sci-Hub and Libgen related domains following a supervisory procedure carried out by local telecoms regulator TKK.

Most of the 24 domains blocked in Austria concern the less well-known LibGen, which describes itself as: "a community aiming at collecting and cataloging items descriptions for the most part of scientific, scientific and technical directions, as well as file metadata."

It's not clear from the article whether the block will automatically be implemented by all Austrian ISPs, or just some of them. It doesn't really matter. In either case, the blocks are easily circumvented. That's the irony here: the more companies like Elsevier try to stop people accessing Sci-Hub and LibGen, the more people get to hear about them (hello, Streisand Effect). Moreover, the more people discover they are blocked from accessing these sites directly, the more they will seek out technical workarounds: installing a VPN, or accessing material via Tor. These approaches have the collateral benefit of giving users access to other blocked sites, and improving their overall security. Thanks, Elsevier.

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Filed Under: academic research, austria, copyright, vpns
Companies: elsevier, libgen, sci-hub