Five Years Ago
This week in 2012, mass anti-ACTA protests broke out across Europe as opposition to the bill continued to swell. Bulgaria joined the list of EU members halting ratification of the treaty and even the European Parliament's president spoke out against it. The EU official who resigned in protest of ACTA explained further what was wrong with it, the head of Mozilla called it a bad way to develop policy, Public Knowledge made a strong call for greater transparency in such agreements, and our own Glyn Moody offered a thorough debunking of the European Commission's list of supposed "myths" about ACTA as well as the idea that there's any meaningful transparency at all. Despite all this, the IFPI and other lobbyists stood by the agreement, even having the gall to claim that the public protests were silencing the democratic process.
Ten Years Ago
Things were pretty grim on the copyright front this week in 2007. The RIAA was making its first forays into voluntary enforcement deals with ISPs that would forward settlement letters, which would eventually morph into the now-dead six strikes program. The US entertainment industry was trying to get Canada condemned as a pirate haven while its Canadian counterpart was itself pushing for an iPod tax. Microsoft was introducing yet another DRM scheme even as one survey showed that even two-thirds of music industry executives thought ditching DRM would be a good idea. Hollywood was beginning a new crusade against Google, not over YouTube but over ads on P2P websites, and a jury sided with sample troll Bridgeport in yet another abuse of the George Clinton copyrights they own. There was, at least, one victory: an EFF-backed lawsuit forced a prolific DMCA abuser to rescind his baseless takedown notices.
Fifteen Years Ago
There was one event this week in 2002 so much more significant than the others that it deserves the sole focus this week. Today, CC licenses are an integral part of the world of digital content, but (because copyright is a disaster) such open and flexible licenses were not always so easy to employ no matter how much a creator might want to. But it was this week fifteen years ago that we first learned that Lawrence Lessig and a team of other people were working on a new project called Creative Commons to provide an alternative to copyright.
Two Days Ago
What, two days ago? Yes: this week, I'm using this space to remind everyone about the Techdirt Survival Fund that we launched on Friday along with our filings in the lawsuit we face. We're very grateful to everyone who has donated so far, and hope you continue to give generously and spread the word so we can continue our fight for free speech.
Techdirt is off tomorrow for President's Day. We'll be posting the weekly comment winners at noon, and back to our regular schedule on Tuesday!
As some of you might have noticed, recent upgrades over at Teespring have allowed us to change the way we offer Techdirt gear. Instead of running individual week-or-two long campaigns that only print and ship once the whole thing is completed, we've now got our logo gear (in two styles) and our I Invented Email gear running on a cycle with new orders printing and shipping every three days, so you don't have to wait nearly as long to get your hands on it. Those of you who already ordered should be getting your shirts, hoodies et al soon!
Another batch closes tomorrow (Sunday) night — so order now to get in on the next shipment! The Email gear won't be around forever, so don't wait too long.
Techdirt Survival Fund: I Support Journalism (Free Speech)
As we mentioned last month, we are currently being sued for $15 million by Shiva Ayyadurai, represented by Charles Harder, the lawyer who helped bring down Gawker. We have written, at great length, about Ayyadurai's claims and our opinion — backed up by detailed and thorough evidence — that email existed long before Ayyadurai created any software. Once again, we believe the legal claims in the lawsuit are meritless and we intend to fight them and win. Earlier today, we filed a motion to dismiss (along with our memorandum in support) and a special motion to strike under California's anti-SLAPP law (along with a memorandum in support). You can see all of those below. I encourage you read through them.
Unfortunately, the fight itself is incredibly distracting and burdensome. It has taken up a significant amount of my time (and the time of others who work here) over the last month and delayed multiple projects that we were working on, and even forced us to pass on writing about many stories we would have liked to cover. Even though we are confident in winning the legal fight, it has already taken a massive toll on us and our ability to function and report. We have now set up a Techdirt Survival Fund at ISupportJournalism.com, which will allow us to continue our reporting on issues related to free speech and the growing threats to free speech online, while continuing to fight this legal battle. We've put together an all-star steering committee to help us oversee how the funds will be spent, including representatives from both the Freedom of the Press Foundation and EFF.
Many of you have already supported us in various ways -- by becoming Techdirt Insiders, supporting us on Patreon or by buying t-shirts. We are so grateful for all initial support we've received, but for us to survive, we unfortunately need to ask for more help. Please consider supporting us via this new fund and spreading the word as well.
In this era, especially, strong independent voices in journalism are necessary. Allowing lawsuits to stifle freedom of expression online, silencing voices and creating chilling effects, is a huge threat to how a responsible society functions. Please support Techdirt and support journalism.
As the world continues to get used to an America with a President Donald Trump at its head, the binary nature of the current political climate has reared its own head in unfortunate ways. One example of this is the stunning speed with which many of those previously ignorant of the emoluments clause of the Constitution, as the Title of Nobility Clause is commonly called, have feigned familiarity with it. As one of my colleagues here termed it, the "emoluments hunting" going on is transparently political in nature, rather than representing a serious effort at protecting the public interest from the shadow of undue influence and sanctioned bribery over our highest political office.
Both sides of the American aisle are badly misusing this important constitutional text. Those whose skin might crawl at the mere words "President Trump" seem to find emoluments violations everywhere, even in the most trivial of cases. Trump himself, of course, hasn't helped in the matter, even when he easily could, as he has shirked the norms of disentangling the presidency from the previous life of he who holds that office. Trump, you will recall, has distanced himself from the decision-making aspects of the family business, but not the profits of it. It's an important distinction, which we'll get into in a moment.
But first, for the sake of context, let's start with the text of the emolument clause, as well as the framers' reasons for its inclusion in the highest law of our land. The text itself is blessedly short and seemingly simple.
No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.
The purpose for the clause was stated explicitly by Alexander Hamilton in the Federalist Papers.
"One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption."
That's pretty straight forward. To prevent the corruption of those in office, those who hold office are restrained from accepting titles, gifts and remuneration from foreign states or foreign leaders. Now, Trump and his allies have claimed repeatedly that the clause does not apply to the President. To do this requires a tortured reading of the clause itself, the blatant ignoring of its intention, as well as a peculiar emphasizing of certain historical events. For example, an oft-cited "proof" of the claim is that Hamilton himself responded to a request by Congress for a list of all persons holding office in the United States, as well as their salaries, with a list consisting only of those officers appointed, while omitting anyone who held elected office. When you have to reach that far back to such a simultaneously tangential and trivial historical instance to argue that a President should be allowed gifts from foreign governments, you don't have much of an argument at all.
And that debate has taken on a certain amount of primacy at present, because for all of the "emoluments hunting" currently going on, there are some very real instances where the raising of the clause is perfectly valid. One of those intersects nicely with a subject we discuss here regularly: trademarks. Chinese trademarks, specifically, now that President Trump, the businessman, has managed to win trademark rights in China after a long slog of a fight that only turned in his favor when he became Donald Trump, the President.
In the context of the entire point of the emoluments clause, it cannot be stressed enough just how long this fight has been going on.
In 2006, Trump applied for a trademark for “Trump” in connection with a company providing construction services in China. China’s Trademark Office rejected the application, on the grounds that someone else (Dong Wei) had filed a similar application about two weeks earlier, and had priority under China’s first-come-first-served trademark rule.*
* There are, apparently, more than 200 other “Trump” marks on the Chinese trademark register — for everything from Trump toilets to Trump pacemakers, Trump condoms and even a “Trump International Hotel” — that have been claimed by persons other than Trump (or any of the Trump Organizations). This, as all good trademark nerds will recognize, is a concrete illustration of a common problem in “first-to-file” jurisdictions, where it can be relatively easy to “reserve” a mark by filing an application, without evidence that you are actually using the mark in question.
Since that initial rejection in 2006, the Trump business has appealed the decision all the way up the Chinese legal ladder, and lost at every turn. The last loss his business suffered on the matter came in May of 2015, shortly before Trump declared his candidacy for President. The rulings, again, only went in one direction against Trump the businessman, and that was a losing direction.
Suddenly, in April of last year, Trump suddenly went back to the Trademark Review and Adjudication Board, which had ruled against his appeal of the original rejection of his trademark application, and asked it to simply review its previous decision. Strangely, the Review Board suddenly reversed course, invalidating Dong's trademark. Trump's trademark was not codified until November 13th, in the immediate aftermath of his winning the Presidency. Immediately after that, the Trump organization applied for nearly fifty other trademarks in China, all of which are pending.
In the context of this complete reversal, the timing of which coincides with Donald Trump becoming President of the United States, does this register as a violation of the emoluments clause? If we can finally resolve this question about whether the clause applies to the President in a way that preserves both the framers' intentions as well as the realm of common sense, it sure seems to be.
It’s not bribery, exactly, that we’re trying to prevent in this clause. We don’t need a special constitutional provision prohibiting office-holders from taking bribes, because taking bribes is already illegal under the common law, and it is also one of the “high crimes and misdemeanors” for which office-holders can be impeached. But it’s a close cousin to bribery; accepting an emolument introduces an improper element — personal gain — into the decision-maker’s calculus, less obviously and overtly than in cases of actual bribery, but no less serious for that.
And that is precisely the situation Trump is now in. He has 49 additional applications pending before the Chinese Trademark Office. He has been given a nice, valuable gift, and he could be forgiven for thinking that other similar gifts could follow (if he behaves himself well).
It's worth repeating that this question could have easily been avoided had Trump bowed to the norms of the presidency and gone further to divest or partition his office from his business than he has. The only reason we're having this conversation is because our current President made the decision to make such questions relevant. And since Trump currently has the status both of President and businessman, benefits to the one must be considered benefits to the other. The granting of trademarks ought to be included in this, particularly given the circumstances surrounding how and when those trademarks went from being wholly rejected to suddenly being granted.
And for those who would point out that Trump is merely getting his legal benefits under Chinese law, that shouldn't matter.
But why should that matter for purposes of the foreign emoluments clause? If France had had a law that gave all visiting Americans a snuff box (if they came at a certain time to the Hotel de Ville and submitted an application), would Jefferson have been able to keep his? Wouldn’t it have been just as troublesome in those circumstances as an outright gift would have been?
Questions like this were bound to arise after we elected our first billionaire businessman-President. Those questions were assured to exist when that President refused to divest from his business. And we shouldn't look negatively upon our President's previous business success or acumen. But the emoluments clause does exist and, if it is to have any relevant meaning at all, it seems likely that these Chinese trademarks violate it. If nothing else, perhaps cases such as these will finally bring legal clarity to whether the clause applies to the President, because that's a question that is practically begging to be answered at this point.
The saga of Facebook Live marches on, I suppose. The social media giant's bid to get everyone to live-stream content that mostly appears to be wholly uninteresting has nevertheless produced some interesting legal stories as a result. The latest of these is the conclusion of a string of lawsuits filed by a man who used Facebook Live to stream the birth of his child over copyright infringement against many, many news organizations that thought his act was newsworthy.
It was in May of 2016 that Kali Kanongataa accidentally publcly streamed his wife birthing the couple's son. He had intended for the stream to only be viewable to friends and family, but had instead made the stream viewable by pretty much everyone. Even after realizing he'd done so, Kanongataa kept the stream public, leading over 100,000 people to view the video -- including some folks in several news organizations, who used snippets of the stream in news stories about the couple's decision to stream this most intimate of moments.
And then came the lawsuits.
In September, Kanongataa filed suit (PDF) against ABC and Yahoo for showing portions of his video on Good Morning America as well as the ABC news website and a Yahoo site that hosts ABC content. He also sued COED Media Group and iHeartMedia. In October, he sued magazine publisher Rodale over a clip and screenshot used on the website for its magazine Women's Health. Last month, he sued Cox Communications.
In November, ABC lawyers filed a motion (PDF) calling their client's use of the Kanongataa clip a "textbook example of fair use." ABC used 22 seconds of a 45 minute video in order to produce a news story that would "enable viewers to understand and form an opinion about the couple's actions."
ABC's motion, embedded below, goes on to patiently explain to the court and, presumably, to Kanongataa's crack legal representation, that the entire point of the Fair Use defense was to allow small amounts of works to be used for the purpose of commentary and in news stories. Were lawsuits like this one to be victorious, news in the era of the image would come to a screeching halt. And, since the stories generated by these news organizations centered on the newsworthy nature of a couple streaming this sort of thing in the first place, use of such clips and images was perfectly in line with Fair Use usage in their reports.
The presiding judge, Lewis Kaplan, appears to have understood this correctly, having tossed the lawsuit against ABC and the other defendants.
Judge Kaplan's order shuts down Kanongataa's lawsuit against ABC, NBC, Yahoo, and COED Media Group. A lawsuit against CBS and Microsoft was dropped in November, possibly due to a settlement. The case against Rodale is still pending and is also being overseen by Judge Kaplan. Kanongataa's lawsuit against Cox was filed in a different district and remains pending in the Eastern District of New York.
This really is about as textbook a case of Fair Use as there could possibly be, leading us to wonder what in the world the legal team Kanongataa had hired was thinking in filing this in the first place.