When it comes to frivolous trademark lawsuits, you think you’ve seen it all, but then one comes along that makes you throw up your hands. Here at Techdirt, we understand that the average individual might not know some of the broader nuances of trademark law, such as the focus on customer confusion, or the requirement, in most cases, that the parties reside within the same industry or market. But that understanding goes out the window when we’re talking about a lawsuit brought by a large corporation that, like, totally has lawyers and stuff. I use that tone and vernacular specifically as preparation for stating that Five Below, the large retailer with trendy products for less than five bucks, has sued 10 Below, a small chain of ice cream shops.
And before you ask, yes, pretty much all of the media covering this is actually pointing out how divergent the markets and industries of these two companies is, often in spectacularly funny fashion.
One store sells remote-controlled poop, mini-plasma balls, and Mongolian Faux Fur Blankets, all for $5 or less. The other store sells that trendy rolled ice cream.
But Five Below (currently 600 locations) says that 10 Below (five locations, only one in Philly) is violating the discount store’s trademarks, and the company has told the rolled ice cream shop to find a new name.
For anyone who has watched trademark proceedings in the past, this is something of a laugher. Claiming that anybody might be confused between the type of things that Five Below sells and an ice cream shop is going to be something of a tough sell in any courtroom. And, once you understand the reason for each company’s name, you will quickly realize that this is not the case of 10 Below trying to trade on Five Below’s good name. Five Below sells things for five dollars or less, where 10 Below refers to the way the ice cream shops make their product, including dropping the temperature to minus-ten degrees. There’s just not synergy between the names here at all. In the filing (below), Five Below makes much of its sales of candy and ice cream at its stores, except that I can’t find ice cream listed in this section on its website and the candy referenced is merely other brands being sold there.
And IP attorneys looking through all of this seem to agree.
“It seems to me that you have a very large company pounding its chest and trying to intimidate a smaller company,” says Flaster Greenberg intellectual property attorney Jordan LaVine, whose clients include Martha Stewart and The New York Times. “This is a classic example of trademark bullying. It’s an unfortunate situation for a smaller company that might not have the money to defend itself.”
Plus, 10 Below first opened in New York City in 2015, when Five Below already had a presence there, but Five Below didn’t take them to court until more than two years later.
“They should have taken action a lot sooner than the end of 2017,” says LaVine.
In other words, this is pretty much ticking off every checkbox for how to lose a trademark bullying lawsuit. It’s enough to wonder whether all of this came down to 10 Below opening a location near Five Below’s company HQ in Philadelphia and this is all coming from executives that noticed and went on an ego trip. Regardless, this will hopefully be quickly laughed out of court.
As we’ve been noting for a while, the FCC’s 3-2 vote to kill net neutrality is really only the beginning of a new chapter in the fight for a healthy, competitive internet. The rules won’t truly be repealed until 60 days after they hit the federal register in January. And even then, the repeal will have to survive a multi-pronged legal assault against the FCC, accusing it of ignoring the public interest, ignoring feedback from countless experts, and turning a blind eye to all of the procedural oddities that occurred during its proceeding (like, oh, the fact that only dead and artificial people appear to support what the FCC is up to).
ISPs know that this legal fight faces a steep uphill battle with all of the procedural missteps at the FCC. That’s why we’ve been warning for a while that ISPs (and their army of think tankers, sock puppets, consultants, and other allies) will soon begin pushing hard for a new net neutrality law. One that professes to “put this whole debate to bed,” but contains so many loopholes as to be useless. The real purpose of such a law? To codify federal net neutrality apathy into law, and to prevent the FCC from simply passing tougher rules down the road.
Just like clockwork, Comcast responded to last week’s net neutrality killing vote with a blog post by top Comcast lobbyist David Cohen (the company, for the record, hates it when you call Cohen a lobbyist) calling for a new, Comcast-approved law. Cohen declares that it’s “time for Congress to act and permanently preserve the internet,” while repeatedly and comically trying to downplay Comcast’s own role in the chaos we’re currently witnessing:
“Unfortunately, there are others who want to continue engaging in a never ending game of back and forth, creating unnecessary anxiety and contributing to an unneeded level of hysteria. Some will undoubtedly continue threatening litigation that does nothing to protect consumers or freedom of the Internet.”
Funny, since the one doing the litigating is Comcast, which sued to overturn both the FCC’s 2010 and 2015 net neutrality protections. Regardless, Cohen would have you believe that the only path forward at this point is the creation of a new net neutrality law. One, Cohen knows very well would be quite literally written by Comcast thanks to our campaign-cash-slathered Congress. Such a law would, Comcast argues, end the “regulatory ping pong” that Comcast itself is perpetuating:
“It?s now time for all of us to take advantage of this moment in time and end the cycle of regulatory ping pong we?ve been trapped in for over a decade and put this issue to rest once and for all. And there?s a simple way to do this — we really must have bipartisan congressional legislation to permanently preserve and solidify net neutrality protections for consumers and to provide ongoing certainty to ISPs and edge providers alike.”
So what would a Comcast-approved net neutrality law look like? Comcast has repeatedly made it clear that it supports a ban on the blatant throttling or blocking of websites and services by ISPs, since that’s not something ISPs were interested in doing anyway. ISPs long ago realized there’s an ocean of more subtle ways to abuse a lack of competition in the broadband market. For example. why block Netflix outright (and risk a massive PR backlash) when you can impose arbitrary and unnecessary usage caps and overage fees that only apply to Netflix, not Comcast’s own content?
So, expect any Comcast-approved law to outlaw all of the things large ISPs never intended to do, while ignoring all of the more subtle areas that the net neutrality fight has evolved to cover. For example, a Comcast-approved law won’t even mention caps or zero rating. Nor will it address the shenanigans we’ve seen on the interconnection front. But any Comcast-approved law will include ample loopholes allowing Comcast to do pretty much whatever it likes provided it ambiguously suggests it’s for the health of the network (a major problem in the FCC’s flimsy 2010 rules).
Since he played a starring role the last time ISPs tried this, expect Senator John Thune to play a starring role in this effort. You should also expect an ocean of editorials from ISP-funded policy folk (where financial conflicts of interest aren’t disclosed) to start popping up on websites and newspapers nationwide insisting a net neutrality law is the only path forward and that anybody that opposes this push simply isn’t being reasonable.
And while many lawmakers and media folk will be tempted to support this push arguing it’s better than no rules at all that’s not really true. If flimsy and poorly-written, this new Comcast-approved legislation could simply codify federal net neutrality apathy into law, while banning any future FCCs’ or Congress’ (say, a theoretical one not quite so beholden to ISP cash) from passing real protections down the line. The best bet at stopping this net neutrality repeal currently rests with the courts. Should that fail we can revisit this conversation, but only if voters are able to drive ISP-loyal marionettes out of office.
Another court has decided compelled password production isn’t a violation of the Fifth Amendment. The Massachusetts case [PDF], titled “In the Matter of a Grand Jury Investigation,” concerns allegations of child abuse. The grand jury requested access to the contents of the suspect’s phone. The government obtained a warrant but sought a court order compelling the suspect to produce a password to unlock it. The court granted it and the suspect challenged the order after being hit with contempt charges for failing to turn over the password. (via FourthAmendment.com)
The court finds no problem with the government’s reasoning. According to the court, the ownership of the phone is the only “foregone conclusion” the government needs to reach.
Here, the Commonwealth demonstrated sufficient knowledge to show that the factual statements that the petitioner’s act of entering his PIN code would convey are foregone conclusions. As summarized in the grand jury materials submitted to the judge under seal, the Commonwealth already knew that the iPhone contained files that were relevant to its investigation based, in part, on information provided by the petitioner. In addition, the Commonwealth knew that a PIN code was necessary to access the iPhone, that the petitioner possessed and controlled the iPhone, and that the petitioner knows the PIN code and is able to enter it. Accordingly, the Commonwealth established independently and with specificity the authenticity, existence, and possession of the compelled information.
Because of this low bar, the government can seek compelled access, even if the production of the password might result in evidence the government can use against the suspect.
Thus, the order does not require the petitioner to communicate information that would fall within constitutional self-incrimination protection. The affidavit in support of the search warrant application established that the Commonwealth had probable cause to believe that the iPhone contained evidence of the crimes that are the subject of the grand jury investigation. The order simply allows execution of that warrant.
This result is unsurprising, considering the only thing the government must prove is the locked device is owned or controlled by the person refusing to provide a password. There’s a little variance between courts on the subject of “foregone conclusion,” but the bar remains low enough most prosecutors and law enforcement agencies should be able to hit it. Of course, there’s always a chance a person would rather spend an indefinite amount of time in jail on contempt charges rather than grant access to evidence to be used against them in a criminal trial.
This gives the government a considerable amount of leverage in cases like these. Considering courts are routinely sympathetic to “foregone conclusion” arguments, it’s odd the courts haven’t been hit with a massive influx of cases like these since the 2015 switch to default device encryption.
We hear from the FBI and prosecutors like Cy Vance that thousands of locked phones are sitting around law enforcement offices with no options for accessing their contents. It would seem compelled production is a pretty safe bet. Even if it doesn’t result in device access, it would at least result in contempt charges, which would probably motivate more people into allowing access. But we just haven’t seen that happen, which suggests the entities make the loudest noises about encryption aren’t making a good faith effort to use every option available to them.
Tesla remains a fascinating company. Elon Musk famously likes to do things his own way, and doesn’t much care for convention. And that’s often a great recipe for innovation. At times, it leads to really awesome things like giving away all the company’s patents for anyone to use without licensing. But, sometimes it does some weird things that should make people think twice about buying into the Telsa vision — even when at first pass it may make sense. For example, a few months ago, we were concerned about the “surprise” remote range extension that Tesla gave to drivers in Florida to help them evacuate before Hurricane Irma hit. On its face, this obviously seems like a good thing. Helping people evacuate a hurricane by extending their mileage is unquestionably good.
But it did raise some concerns — about a company remotely, and without notification, updating the car you purchased from afar. Because if it can be used for “good” reasons (like giving you extra range to escape a hurricane) it might also be used at other times for bad reasons. What if, for example, Elon Musk decides he doesn’t like you. Last year, Musk famously banned famed venture capitalist Stewart Alsop from buying one of Tesla’s cars after Alsop publicly complained about a poorly staged event by Tesla. Could Musk “brick” someone’s car for displeasing him? The backlash to that would be massive, which probably keeps such a move out of the realm of likelihood, but there are still problems with the company changing your car after purchase.
Similarly, last year there were reports that Tesla was banning people from using its self-driving car technology as part of any ride-sharing project. This seemed like an anti-competitive move, as Tesla has talked about setting up its own sort of Uber using self-driving cars that people would buy (basically, you’d “rent out” your car while you weren’t using it). We thought that was a neat idea, but were troubled by the idea of contractually blocking Tesla owners from working with other vendors on such a project.
And now there’s another troubling move: Tesla is telling “commercial” drivers of its vehicles (mainly ride-sharing drivers) that they can’t use the company’s Supercharger network to charge their cars. There are perfectly legitimate, non-nefarious reasons for this. Mainly: there are apparently problems with Superchargers being overcrowded these days, and you could see why the company doesn’t want them clogged up with ride sharing drivers, effectively subsidizing their driving jobs. At the very least, the company has made it clear the policy only applies to new Tesla buyers, so it’s not a bait-and-switch situation.
But, still, there’s something troubling about the idea that the company can ban you from using its Superchargers based solely on the type of driving you’re doing. Again, that leads to questions about what other situations may arise where Tesla bans people from using its chargers in one form or another. I’m sure that many won’t think this is a big deal — and will point out that the company needed to do something to avoid congestion. But we should be concerned about how this is subtly changing our relationship to the products we (thought we) own, and the control that companies have over our usage, post-purchase.
I don’t think Tesla is doing anything nefarious here, and there are plenty of seemingly good reasons for why the company chose this path. But we should be quite careful and thoughtful about how we move into a world where the company that sells you something retains an astounding amount of control over how and even if you are allowed use it, based on how much it likes or dislikes you or your profession. Because sooner or later, these issues are going to get bigger and more problematic — and it might help if we really thought about them now, before things get messy.
If the end of the year is closing in, it means it’s time for Manhattan DA Cy Vance’s Annual Anti-Encryption Spectacular! Gather the kids around because the 2017 edition of Vance’s annual plea for an encryption ban has just been published [PDF]. Don’t worry, Vanceheads, the core essence of the DA’s anti-encryption publication remains unchanged: encryption is for letting bad guys get away with crimes.
Vance’s state-of-encryption report leads off with the same assertion the FBI and DOJ have been making lately: every locked device contains a wealth of criminal evidence.
Traditional investigative techniques – searches of targets’ homes, physical surveillance, wiretaps on telephones – often fall short when it comes to gathering enough evidence to solve and prosecute today’s criminal activity. Unfortunately, much of today’s evidence exists in a space that, prior to 2014, was largely unheard-of: warrant-proof smartphones that have been designed to keep law enforcement out.
Two false assertions and we’re barely getting started:
1. At best, the “much of today’s evidence” is an assumption. Locked devices can’t prove or disprove this theory, but the biggest courtroom battle over encryption ended with a third party cracking the San Bernardino shooter’s phone and the device yielding up a whole lot of nothing.
2. Smartphone encryption is not “designed to keep law enforcement out.” It’s designed to keep everyone who isn’t the phone’s owner out. Law enforcement just happens to be in the “everyone who isn’t the phone’s owner” group. Maybe if people like Cy Vance stopped taking this so personally he might have more fruitful discussions with tech companies.
From there, Vance goes on to lament encryption workarounds as being expensive and impossible to scale. These lamentations are buttressed with assertions of lawful access: the theory that the presence of a warrant should immediately result in the production of all evidence law enforcement believes exists.
Vance also claims there’s been an “explosion” in the number of uncrackable devices seized by law enforcement. But in reality, the uptick has been slight since the advent of default encryption in 2015.
This is to be expected. The numbers cited by Vance are ultimately meaningless without greater context. A pile of uncracked cell phones can be evidence of thousands of unsolved crimes, or simply a bunch of ultimately useless devices containing nothing of interest. The truth lies somewhere in the middle, but everyone (like Vance himself) who engages in the press conference drama of piling up locked phones and dropping insinuations that criminals are walking free is being at least a little bit disingenuous. (That New York City’s crime rate continues to drop despite more device encryption [and the shutdown of stop-and-frisk] belies the implication that locked phones mean more criminals getting away with more criminal activity.)
Vance discusses recent court decisions, noting how most courts have found passwords to have some Fifth Amendment concerns whereas fingerprints do not. In this context, the shift to fingerprint security options should work out better for law enforcement. But Vance still claims encryption can’t be litigated around. According to the DA, courts aren’t coming to a consensus on compelled production of passwords quickly enough and a couple of Constitutional amendments (Fourth/Fifth) are keeping law enforcement from operating as efficiently as it would like.
[M]any devices are now accessible not only via their passcodes but also with the user’s fingerprint. And Apple’s newest technology eliminates the fingerprint identification in favor of facial recognition technology. As documented in the 2016 Report, biometric data like a fingerprint (and, presumably, a user’s face) is generally not considered to be protected by the Fifth Amendment. At least one court has held that a user can be ordered to unlock his device via the fingerprint sensor, and in some instances, law enforcement, including this office, has sought and obtained search warrants that include provisions ordering occupants of the target premises to use their fingerprints to unlock any Touch ID-enabled devices. However, even if this became standard practice for law enforcement, its utility would be limited, as iPhones require the entry of the passcode after 48 hours of inactivity, or when the phone restarts. Apple’s newest technology also undermines law enforcement’s ability to use fingerprints to unlock a Touch ID-enabled device.
More importantly, there is reason to believe courts may view these blanket orders with skepticism. A federal magistrate judge in Illinois recently denied a search warrant provision ordering occupants of a premises to unlock devices with their fingerprints, finding the government had not established probable cause to detain every person on the scene for the purpose of obtaining their fingerprints. While there was no “protectable Fourth Amendment interest” in the fingerprints themselves, the detention of all occupants for the purpose of getting their fingerprints was deemed a violation.
This brings us to Vance’s ultimate goal: anti-encryption legislation.
Default device encryption remains a significant public safety concern – it hamstrings law enforcement agencies in their efforts to investigate, solve, and prosecute crime. Recent developments in encryption workarounds have provided some measure of relief, but pitting law enforcement and the technology sector in an endless cat-and-mouse game is ill-advised, costly, and untenable. It also offers no remedy to the huge majority of law enforcement agencies that cannot afford to pursue “lawful hacking” solutions.
It is true that, as some commentators point out, if smartphone providers were required by law to comply with decryption orders issued by state and federal courts, some more sophisticated criminals might migrate to foreign providers, or employ additional encryption technology not subject to such regulations. But the fact is that criminals, like all users, prefer software and devices that are reliable and user-friendly, and most of them will continue to use iPhones and Androids for that reason. Indeed, for this same reason, search warrants executed on United States-based email accounts often yield critical evidence, even though criminals could choose to use foreign email providers who are not subject to U.S. legal process.
What’s being willfully ignored in this summary? The fact that backdoored encryption would also be a boon for “sophisticated criminals.” Leaving this necessary factor out is deliberate and misrepresents what’s at stake. It also portrays those that would take their business to foreign firms as “serious criminals,” deliberately ignoring the fact that many law-abiding citizens would do the same if the federal government backdoored/banned encryption.
To support this call for anti-encryption legislation, Vance cites — of all things — problematic concessions Apple has made to the Chinese government.
[A]pple’s refusal in recent years to accede to court orders and legitimate requests from law enforcement stands in stark contrast to its conduct in China. There – to the dismay of privacy advocates and others – Apple has recently complied with the government’s directives that businesses locate their servers within mainland China, and has taken other steps that pose threats to customer privacy… Notably, the Chinese government imposed these new requirements through legislation, not by seeking court orders, and Apple’s CEO Tim Cook, in defending Apple’s decisions in China, stated simply, “we follow the law wherever we do business.” In other words, the only way to resolve the encryption dilemma in the United States will be through legislation too.
The argument Vance is making — although he’s probably unaware he’s making it — is that the US should be more like China and control phone manufacturers with heavy-handed legislation and onerous demands. I suppose it’s unsurprising someone working so close to the police would find a shift towards to a more authoritarian government model a good idea, but it’s rarely expressed publicly.
I, for one, look forward to next year’s Cy Vance Pre-Christmas Anti-Encryption Extravaganza. Because every time the annual issue rolls out, it means one thing: no anti-encryption legislation has been passed.
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You would think that to become a state Supreme Court Justice you need to be familiar with the basics of the law — including famous legal rulings. For example, New York Times Company v. United States from 1971 is a pretty important and well known First Amendment case, in which the court specifically said that preventing newspapers from publishing information was unconstitutional prior restraint. That case relies on a number of other super famous First Amendment cases such as Near v. Minnesota and Bantam Books v. Sullivan. I mean, I’m not a lawyer and I know these cases. You would think that an Iowa Supreme Court Justice would as well.
No such luck, apparently. As the Associated Press is reporting, Justice David Wiggins of the Iowa Supreme Court has blocked the Des Moines Register from publishing material that it had obtained via court records that were inadvertently made public.
Wiggins granted a temporary stay Monday that blocked the newspaper from publishing information obtained from records relating to Des Moines attorney Jaysen McCleary. McCleary argued the records contained private information about his disabilities and finances and were never intended to be public.
The records were inadvertently filed publicly by one of McCleary’s lawyers in a lawsuit he filed against the city of Des Moines that alleged he suffered injuries when he was hit in the head by a garbage container launched from a city truck. They consisted of reports from experts who had evaluated McCleary, and were available for months in the state’s electronic court records. The parties told the court they reached a settlement in November.
Now, it’s entirely reasonable to sympathize with Mr. McCleary. Through no fault of his own, material that he doesn’t want public got released. He should be pretty pissed off at his lawyers. But that is no excuse for prior restraint. There is no First Amendment exception for “but that might embarrass the guy” or “oops, he didn’t mean that to become public.”
The Register has objected, calling the order an unlawful form of prior restraint that violates the First Amendment and ?stands as an undesirable and unsustainable outlier in the law and policy of this state and this nation.?
[….]
The Register?s attorney, Michael Giudicessi, has asked the Iowa Supreme Court to vacate the order, arguing in court filings that ?the United States Supreme Court has never approved imposition of a prior restraint against the news media and the court has suggested it would consider doing so only in dire situations, such as matters of national security when the country is at war.?
Giudicessi wrote that the order is ?an impermissible prior restraint of the press barred by the Iowa and federal constitutions. ? The order unmistakably functions as an injunction directed to the Des Moines Register newspaper and its news reporter, Clark Kauffman, enjoining them from publishing the contents of court records.?
Apparently, the documents in question were not just filed publicly by McCleary’s lawyers, but they remained available for anyone to download for an astounding three months, without objections. It was only after McClearly realized that the Des Moines Register was going to publish something that his lawyers suddenly freaked out.
Even more incredible, according to the Des Moines Register’s Clark Kauffman, writing a story in which he refers to himself in the third person, he first alerted McCleary to the documents being public, and received a thank you from McCleary… followed up by a lawsuit.
On Nov. 15, after reviewing hundreds of court documents, Kauffman emailed McCleary to let him know the records were publicly available on Iowa Courts Online.
“I just wanted to make you aware of that in case that was something you or your attorneys had asked the court (to) address,? Kauffman wrote.
McCleary wrote back, thanking Kauffman for alerting him to the situation. The next day, a Polk County judge had the documents sealed and made subject to a protective order.
McCleary later sued Kauffman and the Register, claiming they were conspiring with the city of Des Moines to defame him and damage his reputation through a planned news article that would make use of the sealed records and other information.
What a way to “thank” Kauffman for alerting him to the fact that the information was public. Suing Kauffman seems like a pure SLAPP lawsuit. Too bad Iowa doesn’t have an anti-SLAPP statute.
It’s difficult to see how this injunction against publishing will hold, and it’s difficult to see how McCleary can win his cases against Kauffman, but without an anti-SLAPP law to get the case tossed quickly, it can still be quite a painful process. In the meantime, if McCleary didn’t want to “damage his reputation,” perhaps he shouldn’t have sued a local newspaper and its reporter for doing their job. Because no matter what’s in the now blocked report, I can’t imagine it doing as much harm to one’s reputation as trying to use the legal system to silence the press from reporting on public information.
This is one of those frustrating stories where basically everyone’s wrong about everything. Here’s how it started: Just prior to Ajit Pai’s FCC officially dumping net neutrality rules last week, the Daily Caller released a video with Pai. Pai seems to have a way of not realizing just how incredibly unfunny, tone-deaf and cringeworthy his “jokes” are — but it doesn’t stop him from trying again. If you somehow missed it, you can see the video here:
The video is bad and dumb and misleading and, yes, very, very cringeworthy. The pure awfulness of the video is what got people worked up initially, with Pai’s supporters gleefully laughing at Pai’s opponents for getting upset about it. If you can’t see it for some reason, it involves Pai claiming that nothing is going to change on the internet following his bad decision to kill the FCC’s net neutrality rules, and then attempts to show some examples: posting images of food and dogs to the internet, doing some online shopping, being a dorky Star Wars fan and, finally, “ruining a meme.”
That meme? The Harlem Shake. If you were online in 2013, you almost certainly remember it. Because it was everywhere. For a couple months or so, everyone on the internet seemed to feel it was their obligation to create a video showing people crazy dancing to a snippet of the song “Harlem Shake” by “Baauer” the stage name of a music producer named Harry Rodrigues. The song, the Harlem Shake uses a sample from another song, Miller Time, by Philadelphia’s Plastic Little. Also, the “con los terroristas” line was sampled from a singer named Hector Delgado.
Back in 2013, we actually had a few stories about copyright issues around the whole Harlem Shake phenomenon. First, we noted that Baauer and his label, Mad Decent, seemed to have engaged in selective enforcement of whatever copyright they might have held on the song. They left most videos live on, but did take down some from people they disagreed with. We also noted that the whole meme went viral not for anything that Baauer actually did, but because of the first few videomakers whose crazy videos turned it into a thing. Finally, we noted that Delgado and Plastic Little were demanding their cut as well.
And, of course, we should note that the whole Harlem Shake meme came and went pretty fast. I mean days after it went big, it was already declared dead. And, yes, this was part of the lame Pai joke.
Onto outrage two: soon after everyone was complaining about how awful (and inappropriate) this video was, some people noticed that one of the women dancing in the Ajit Pai Harlem Shake video… was a conspiracy theorist Pizzagater. Which, you know, is not really a good look for the freaking Chairman of the FCC (especially while making fun of people who are concerned about the future of the internet).
Outrage three: we’re back to copyright. Baauer tweeted angrily that he supported net neutrality and was “taking action” saying “whatever I can do to stop this loser.”
“The use of my song in this video obviously comes as a surprise to me as it was just brought to my attention. I want to be clear that it was used completely without my consent or council. My team and I are currently exploring every single avenue available to get it taken down. I support Net Neutrality like the vast majority of this country and am appalled to be associated with its repeal in anyway.”
So, let’s be clear why this is also bad. The use here is obviously fair use. In the past we argued that all of the Harlem Shake videos were likely fair use, but the case with the Pai video is even stronger. It’s clearly a parody in making fun of the song’s use in the old dead meme, and parody is non-infringing as fair use. If there was a lawsuit, Pai/FCC/Daily Caller would win. Furthermore, it appears that Baauer is basically trying to assert a sort of “moral” right into copyright that doesn’t exist under US law. Moral rights, which are available in other countries (and only on limited works in the US — but not music) allow an artist to block an otherwise legal usage by saying they don’t want to be associated with it. But not in the US.
Indeed, Baauer seems to be admitting his intent to misuse copyright to silence speech he doesn’t like. That’s bad. Even if I agree that Pai’s video is awful and his effort to destroy net neutrality is terrible, that still doesn’t make it right to abuse copyright law to silence speech.
But… that didn’t stop Baauer’s label, Mad Decent, from going ahead and issuing a takedown and promising to sue if the video was not removed:
Official statement re the use of "Harlem Shake" in Daily Caller's video of FCC Chairman Ajit Pai: neither Mad Decent nor Baauer approved this use nor do we approve of the message contained therein. We have issued a takedown will pursue further legal action if it is not removed.
And, indeed, as with basically any YouTube takedown, the company took the video down:
There were many people who are quite rightly upset at Pai’s killing of net neutrality who then quite wrongly cheered on this takedown. It may be fun to see someone you dislike have their speech silenced through abusive copyright takedowns, but that doesn’t make it any less wrong. No matter how much you disagree with Pai (and we disagree with him around here quite a lot), pulling down his video over a copyright claim is clearly bad.
And that takes us to outrage four: The Daily Caller then totally flips its lid with laughable conspiracy theories about how YouTube only took the video down because Google supports net neutrality and wanted to silence Ajit Pai.
YouTube?s targeting of Daily Caller content and its willingness to remove our video for political purposes while millions of other uses are allowed to remain on the platform should stand as a terrifying prospect for every American.
Except that’s ridiculous. YouTube takes down tons of videos when it receives a DMCA notice. Indeed, the web is filled with examples of YouTube taking down videos that should be protected by fair use. That’s why users can counterclaim and say that it’s fair use. And YouTube is pretty good about responding to such fair use counterclaims and getting the video back up. Which is what happened here. But, the Daily Caller insists the video only was put back up because it’s big and has lots of influence (feel free to debate both of those points if you’d like).
There’s still a possible future outrage: if Mad Decent and/or Baauer actually sue over it, which hopefully any reasonable lawyer will talk them out of doing.
So, again, everyone and everything in this story is awful. Pai’s video is dumb, misleading, cringeworthy and awful. Pai’s actions around net neutrality are awful. Pai cavorting with a conspiracy theorist is awful. Baauer and Mad Decent freaking out over obvious fair use of their song is awful. Mad Decent issuing a bullshit takedown is awful. YouTube complying with the takedown is awful. And the Daily Caller stupidly assuming the compliance with the takedown is for political reasons, rather than standard operating procedure for DMCA takedowns is awful.
In short: it’s all awful. Horribly awful.
The FCC shouldn’t be killing net neutrality. The chairman of the FCC shouldn’t be making awful, misleading videos with nutty conspiracy theorists mocking the vast majority of the American public who disagree with his stupid plan. And he shouldn’t include four year old memes, even if it’s to parody old memes, because, really, let the fucking memes die. The people who got rich off the memes shouldn’t then abuse copyright law to try to censor speech they don’t like. And the people who made the stupid, awful video in the first place, shouldn’t leap to laughable conclusions about why their video got taken down.
And I feel like I should end this post with “… and get off my lawn,” though I’d much prefer that we live in a world where we weren’t having competing narratives over censorship, where the internet remained open and free and non-discriminatory, and bogus copyright takedowns didn’t take down expressive content, no matter how dumb it might be. Tragically, we’re not there yet.
It’s no secret that the two regions most affected by China’s strict controls are Tibet and Xinjiang, the vast and troubled Western region where the turkic-speaking Uyghurs form the largest ethnic group. Earlier this year, we wrote about one fairly extreme surveillance technique in Xinjiang: a requirement for every vehicle there to be fitted with a tracking device. Now Human Rights Watch reports that an even more intrusive surveillance measure is being implemented for the region’s 24 million inhabitants:
Chinese authorities in Xinjiang are collecting DNA samples, fingerprints, iris scans, and blood types of all residents in the region between the age of 12 and 65, Human Rights Watch said today. This campaign significantly expands authorities’ collection of biodata beyond previous government efforts in the region, which only required all passport applicants in Xinjiang to supply biometrics.
For so-called “focus personnel” — those individuals that the authorities consider a threat to political stability — the biometrics will be taken from everyone in their family, regardless of age. Here’s what all that highly-personal information from the “Population Registration Program” will be used for, according to the Chinese government:
Authorities state that the Population Registration Program is meant for “scientific decision-making” that promotes poverty alleviation, better management, and “social stability.” Authorities have offered the annual Physicals for All program since 2016, characterizing it as a benefit for the relatively economically poor region. The program’s stated goals are to improve the service delivery of health authorities, to screen and detect for major diseases, and to establish digital health records for all residents. Press reports about Physicals for All include testimonies from participants describing how they received treatments for previously undiagnosed illnesses, and in some cases saving their lives.
Who could possibly object to such a well-intentioned health initiative? But as Human Rights Watch emphasizes:
Coercing people to give blood samples, or taking blood samples without informed consent or justification can violate an individual’s privacy, dignity, and right to bodily integrity; it can also in some circumstances constitute degrading treatment. Compelled DNA sampling of an entire region or population for purposes of security maintenance is a serious human rights violation in that it cannot be justified as necessary or proportionate.
It would be naïve to think that the authorities won’t use this massive DNA database in order to increase their surveillance of the Uyghur population. DNA is the ultimate identity number. It is present in nearly every cell in the body; it is difficult to change in a non-random way unless you have lots of money and top-flight CRISPR scientists at your disposal — unlikely in the case of Xinjiang residents; and we leave it everywhere we go, and on everything we touch. DNA also has the virtue — for the authorities — that it provides information about related individuals, since they all have some of their genetic code in common. That means it would be possible to determine everyone in the close family of a someone under investigation, by finding related DNA sequences. It’s the kind of information that could be abused by the police in multiple ways.
As well as concerns about the human rights of Uyghurs being harmed, another issue is that Xinjiang’s Population Registration Program may be used as a trial before rolling out DNA collection to the entire Chinese adult population, just as is happening with a national facial recognition database. Although such a large-scale genetic database would have been infeasible a few years ago, advances in sequencing and dramatic falls in data storage and processing costs mean that it could probably be built now. And if China goes down this route, the fear has to be other countries will follow, just as they are doing in the realm of online surveillance.
