Earlier this year, we were among the first to write about the highly questionable practice of "reputation management" companies filing clearly bogus lawsuits against unknown defendants, only to magically have those "defendants" show up a day or two later with an agreement that they had posted defamatory content. The goal of these lawsuits was obvious: get a court order. That's because many platform websites, including Google, won't take down or delink content based on a claim of defamation, but will do so if there's a court order. Of course, filing a real lawsuit has all sorts of problems, including money and actually needing to have a real case. These reputation management lawsuits got around all of that by basically faking defendants, having them "agree" to a settlement admitting to defamation, and getting a court order saying that the content is defamatory. Neat and clean. And total abuse of legal process.
Last month, Public Citizen's Paul Levy (who has helped defend Techdirt against some legal bullies) picked up on this thread and found evidence of more bogus lawsuits. A few weeks ago, he and famed law professor Eugene Volokh teamed up to reveal more details on a series of such lawsuits, which all seemed to be connected back to a guy named Richart Ruddie and an operation that goes by a bunch of names, but mainly Profile Defenders. It appears that Ruddie/Profile Defenders is not the only one filing these kinds of lawsuits, but he's been prolific. So far, Ruddie's only response is a bizarre press release touting his "anti-cyberbullying skills."
He may want to find a real lawyer though.
Volokh reports that one of the courts that had granted one of Profile Defenders' orders has now vacated that order. Of course, that might not matter since Ruddie has likely already used it to have content taken down. But, more importantly, the judge in that case is considering another case that looks like it's another Profile Defenders case. And suddenly, the judge seems a lot more interested in the details.
I’m delighted to report that late last week, the Philadelphia Court of Common Pleas vacated the order in one of these cases, Callagy v. Roffman (No. 160603108). The plaintiff’s lawyer told us that the company they used for that case was Profile Defenders, but they had no idea that the defendant in that case was apparently nonexistent (and it’s certainly possible that they indeed had no idea of this).
Also late last week, the same judge scheduled a hearing in Murtagh v. Reynolds (No. 160901262), in which no order had yet been issued; the order scheduling the hearing notes that the plaintiff must present “strict proof of service” for the case to go forward. I haven’t been able to reach the plaintiff in that case — or the ostensible plaintiff, as in some cases the plaintiffs have said that they hadn’t authorized a lawsuit, and in some cases the plaintiffs may have been as fake as the defendants, since the only important thing to the filers was to block access to particular websites mentioned in the order, regardless of who the named plaintiffs or defendants had been. I therefore can’t speak with confidence about whether Murtagh was a Profile Defenders case; but the procedural structure of the case is similar to the others I’ve seen, as is some of the legal boilerplate.
That's not all. A day later, Volokh wrote about another such case that was voluntarily dismissed. In this case, Volokh notes that the reputation management scheme may have been even more nefarious than previously thought. Most of the examples we've seen involve trying to remove articles or reviews by claiming those articles are defamatory and then "faking" a "defendant" willing to "settle" and admit guilt in order to get a court order. But in this latest case (and in another one Volokh has seen) it appears that the reputation management operation would try to get a news article to disappear from Google by first submitting a defamatory comment by themselves, and then suing for "defamation" based on that comment (and, then, of course, producing a "defendant" who settles). End result: Google is told to delist an entire article because of a defamatory comment... put their by the "reputation management" firm in the first place:
The article went up in January 2014, but then in July 2016 a comment was posted to the article. (The comment has been deleted in the past few weeks, but the people at the Post & Courier assure me that it wasn’t deleted by them.) And then just a few weeks later, the lawsuit was filed, claiming that the comment was defamatory and that the comment’s author agreed to an injunction ordering the removal of the comment. The plan, I suspect, was to take any such injunction and submit it to Google as a basis for deindexing the whole article (because Google can’t separately deindex the comment). Sometimes this sort of plan has worked.
The comment plays a peculiar role in such cases, I think. In one similarly structured case, for which I have been told what day the contract with the reputation management company (there, Profile Defenders) was signed, the comment was posted immediately after that signing, so I assume that comment was ginned up for the purposes of that lawsuit.
Hopefully, as more judges learn about this scam, it won't be so easy to pull off.
from the this-is-why-it's-always-worth-protesting dept
A few weeks ago, we reported on a move by some public-spirited lawyers in Kuwait to challenge an extraordinary new law that would require everyone in the country -- citizens and visitors like -- to provide their DNA for a huge new database. It seemed like a quixotic move, since the Kuwaiti authorities were unlikely to be intimidated by a bunch of lawyers. And yet Kuwait has indeed backed down, as reported by New Scientist:
Kuwait plans to scale down, and may ultimately revoke, a law forcing all its citizens and visitors to provide samples of their DNA.
As well as the legal moves, a request from the country's ruler, the Emir of Kuwait, that the law should be revised in a way that would "safeguard people's privacy" seems to have led to a massive scaling-back of the plans:
The Kuwait parliament has now agreed to change the law so that only suspected criminals will need to give their DNA.
Although taking DNA from "suspected" -- not convicted -- criminals is still problematic, overall, this is welcome news, especially for visitors to the country, who presumably won't now have their DNA sampled. It's also a reminder that public outcry, especially on a global scale, can occasionally succeed in getting really bad laws revoked, which is why it is always worth trying.
The US government is still holding onto its opacity ideals while publicly touting transparency directives. The FISA court -- which presides over the NSA's surveillance programs -- has normally been completely shrouded in darkness. Things changed in 2013 after Ed Snowden began leaking documents.
Forced into a conversation about domestic surveillance, the administration responded with more transparency promises and the signing of the USA Freedom Act into law. The new law curtailed the collection of domestic business records (phone metadata and other third-party records) and required the court to make its opinions public following declassification reviews.
All well and good, but the government has apparently decided the new law only requires transparency going forward. FISA opinions dating back to 2001 still remain locked up, despite transparency promises and reform efforts.
The ACLU is now suing the government to force the release of over a decade's-worth of FISC opinions. Many of those still withheld contain rulings on issues that are the very definition of "public interest." The appendix to the motion [PDF] contains a list of opinions the ACLU would like to see released, including the following:
Orders compelling "technical assistance" to weaken encryption or hand over code to the US government.
Stingray deployments authorized by the FISA court.
Possible First Amendment violations arising from the Section 215 program.
A 2013 order detailing "unauthorized NSA surveillance."
The government would like these to remain secret, which is why it's interpreted the new law to only affect decisions reached after the implementation of the USA Freedom Act. But that runs counter to the whole point of surveillance reform and the administration's own transparency directives: to better inform the public about the government's actions. Transparency goes hand-in-hand with accountability and keeping these out of the public's hands does nothing to further either goal.
On the bright side, I suppose, if the plan by the Cubs was to undertake an overly aggressive stance on trademark protection every round of the playoffs, there's only one round left, so this should be it. We had just been discussing that as the team entered the League Series to attempt to make the World Series, it had filed a lawsuit against the many street vendors that line the path to Wrigley Field for selling counterfeit merchandise. This suit, while perfectly within the rights of the team, bucked a decades-long trend of allowing those sales. It was part of the tradition of going to a game, walking by these vendors and seeing their kooky designs. Another tradition for the team is raising a blue "W" flag whenever they win. That "W" was part of trademark opposition by the Cubs and MLB when a business unrelated to the professional sports market dared to use the single letter in a logo for its financial services product.
On October 17, one day after losing Game 2 of the National League Championship Series to the Los Angeles Dodgers, the Cubs filed two TTAB oppositions against trademark applications pending with the U.S. Patent and Trademark Office (USPTO). One mark, filed by Laserwave Graphics, Inc., is for a design that includes the letter “W”. Another, submitted by CopyClear, contains a large “C” with accompanying letters that spell out the company’s name.
Here are the two logos in question. Note how the first makes it extremely clear what company it represents, while the other is simply a "W."
That image, unfortunately, is grayed out, while the Cubs claim that the colors being used within the logos plays a part in its opposition. Let's take those images in reverse order. The "W" is in the trademark application for Laserwave Graphics, which does imaging, branding, and printing on a variety of products. The "W" design appears to be mostly used on watches. The Cubs claim that some of these watch designs also incorporate baseballs, hence the problem. Except we're still talking about a single letter, in a different font, used in a market for which the Cubs are not well known. It's difficult to believe people are looking at these watches and thinking "Cubs."
As for the Copy Clear logo, it's somewhat ironic that Copy Clear's business is in licensing copyrights. The Cubs make much of the fact that the "C" in Copy Clear's logo is red, similar to the red "C" in the team's logo. Which is strange, because on their website, the Copy Clear logo is black with a green background. But even if a red version of the logo indeed exists, the company's name is spelled out within it as well. Where precisely is the customer confusion going to exist here? The "C" is clearly a reference to the registered copyright symbol, not to the Cubs, and it seems like everyone would make that connection.
So, my dear, dear Cubs: I love you, but it's probably time to stop worrying so much about how others are using letters that you use as well. Just go out and win this thing, please.
For folks in the San Francisco area, on Thursday night, I'll be at the Wikimedia Foundation for Wikimedia's brand new, awesome event series: Free Open Shared. I'll be giving a talk on copyright, why it matters, and how the fight over copyright reform impacts all sorts of important stuff, including many things that people don't think of as being related to copyright. I'll be giving a talk and then there will be a Q&A session as well. For those not in the area, they're planning on live streaming the event, and there should be a recording that we can post here as well, but it's always nice to see folks in person (and also, it's much easier to take part in the Q&A that way...). RSVP is required and space is limited, so if you can make it, join us for a fun conversation on copyright.
from the privacy-trampling-as-a-business-model dept
Back in 2013 the New York Times profiled just the latest in AT&T-related surveillance scandals, revealing the existence of "Project Hemisphere." The original report detailed how Project Hemisphere is a joint program between AT&T and the DEA that provides a variety of federal and state law enforcement agencies with nearly real-time access to logs and location data on nearly every single call that touches the AT&T network. Unlike AT&T's NSA-related scandals, in many ways this system is much larger than anything covered previously. It's also much older, with the project having roots as far back as 1987.
Making the revelations even more notable was the fact that the report indicated that AT&T had employees embedded with the DEA to help expedite access to this data. This difficulty in trying to determine where the government begins and AT&T ends isn't new; AT&T has long helped the FBI tap dance around privacy and surveillance law, often having its own employees actively working as government intelligence analysts.
But a new report released this week by The Daily Beast indicates that Project Hemisphere is even bigger than originally claimed in the New York Times report. While the Times suggested this project originated as a "partnership" specifically tailored for drug enforcement operations, the outlet obtained AT&T documents (pdf) on Project Hemisphere that make it clear that the project was designed by AT&T from the ground up as a significant money making opportunity. The program also has a notably wider scope than originally reported:
"AT&T’s own documentation—reported here by The Daily Beast for the first time—shows Hemisphere was used far beyond the war on drugs to include everything from investigations of homicide to Medicaid fraud. Hemisphere isn’t a “partnership” but rather a product AT&T developed, marketed, and sold at a cost of millions of dollars per year to taxpayers. No warrant is required to make use of the company’s massive trove of data, according to AT&T documents, only a promise from law enforcement to not disclose Hemisphere if an investigation using it becomes public.
While phone companies like AT&T are in some instances legally obligated to hand over customer data to law enforcement and intelligence agencies, AT&T has a nasty habit of going well, well beyond this, frequently with only a fleeting regard to existing law. Repercussions for this behavior have been minimal to non-existent, with AT&T frequently scoring massive government telecom contracts, and the government itself happy to retroactively change the law whenever its telco partners get into the slightest bit of hot water.
The leaked documents noted that AT&T was notably sensitive to information on this program seeing the light of day, AT&T informing its government BFFs that data collected from Hemisphere should not be used in "any judicial or administrative proceedings unless there is no other available and admissible probative evidence." Since those charged with a crime have the legal right to see the evidence against them, this often results in the government concocting a false investigative narrative to obfuscate the use of programs like hemisphere.
It likely goes without saying, but EFF attorney Adam Schwartz makes it abundantly clear that's not how functioning democracies and legal systems are supposed to work:
"Once AT&T provides a lead through Hemisphere, then investigators use routine police work, like getting a court order for a wiretap or following a suspect around, to provide the same evidence for the purpose of prosecution. This is known as “parallel construction."
“This document here is striking,” Schwartz told The Daily Beast. “I’ve seen documents produced by the government regarding Hemisphere, but this is the first time I’ve seen an AT&T document which requires parallel construction in a service to government. It’s very troubling and not the way law enforcement should work in this country."
Unsurprisingly, efforts by the EFF and others to obtain more detail on Hemisphere using the FOIA have proven fruitless. The only public discourse on the matter is violently superficial, with AT&T, as you might expect, denying it's doing anything remotely wrong:
"Like other communications companies, if a government agency seeks customer call records through a subpoena, court order or other mandatory legal process, we are required by law to provide this non-content information, such as the phone numbers and the date and time of calls,” AT&T’s statement said.
Right, except that's hard to claim when the documents make it clear that AT&T built Hemisphere from the ground up with the express intent of making money off of the government's mammoth, consistently-law-skirting information dragnet. This latest report indicates that law enforcement agencies pay anywhere from $100,000 to upward of $1 million a year or more for access to Hemisphere, netting AT&T a cozy profit for helping government tap dance over, under and around privacy and surveillance law.
Which brings us to this week's news that AT&T intends to spend another $85 billion to acquire Time Warner. This is the same company that not only builds business models based on trampling the legal rights of American citizens, but pioneered new and exciting ways of charging its broadband customers a steep premium for "privacy" on the other end of the equation. What could possibly, possibly go wrong as AT&T attempts to become larger and more powerful than ever before?
Remember when a copyright maximalist think tank guy insisted that copyright would never, ever be used for censorship? Well, about that...
Earlier this year, we wrote about a crazy lawsuit filed by Gene Kelly's widow, after finding out that a college professor named Kelli Marshall was working on a book collecting interviews with Gene Kelly. Marshall and her publisher reached out to a number of people associated with those interviews to clear any legitimate copyright claims (interview collection books are pretty common, and the copyright issue rarely gets in the way). Kelly's widow, Patricia Ward Kelly, claimed that she held the copyright on all of Gene Kelly's interviews, and sued Marshall for infringement. This was crazy for a variety of reasons, starting with the fact that the person being interviewed very rarely holds a copyright in the words they said (and Kelly's widow made a mad dash to the copyright office to try to register these interviews right before suing). There's also the whole fair use thing.
A couple months back, the court tossed out the lawsuit -- but not over the issues mentioned above. Instead, the court noted (correctly) that the issue wasn't "ripe" for court, because Marshall hadn't even written the book yet, so it's crazy to claim that it's infringing when we don't even know what's in it. So that's a victory, but not a great one for Marshall, since it likely means she's still facing a lawsuit once the book is done. And based on that Marshall has announced that she will no longer write the book.
Despite the judge’s ruling in our favor, I have decided not to move forward with the book. After much frustration and deliberation, I realize I have neither the time nor the resources to endure another potential lawsuit. I regret this for my research. I regret this for academia and the university press. But mostly, I regret this for the fans of Gene Kelly.
I can totally understand why she would do this. Yes, you could argue that she could file a lawsuit for declaratory judgment of non-infringement -- and probably win, but what a hassle that would be (not to mention an expensive hassle). Instead, we get yet another example of a completely bullshit copyright claim being used to censor -- and in this case, an academic book.
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Look, it's getting ridiculous that Hillary Clinton defenders keep insisting that the John Podesta emails released by Wikileaks are full of fakes and doctored content. With most other leaks, including the one of Colin Powell's emails, the victims (and, yes, they are victims) eventually admit that the leaked content is legit. Not so with the Podesta emails. But that's dumb. As Robert Graham points out, it's
totally possible to validate many of the emails. And they do validate.
Whether you like or dislike Wikileaks, whether you think Julian Assange is a wonderful or horrible person, whether you think Wikileaks is just a propaganda tool of Russia or a powerful force for transparency -- one thing you cannot say is that the organization has been caught releasing fake or doctored information. It (and Assange) do have a history of overhyping releases, or misrepresenting their significance. And Assange does seem to be pretty quick to jump on conspiracy theories that don't hold up under much basic scrutiny. But, to date, pretty much everything that Wikileaks has actually leaked has checked out as legit.
So it's been a bit bizarre watching people try to insist that the troves of John Podesta emails that Wikileaks has been releasing are somehow fake, doctored or manipulated. We recently wrote about Newsweek reporter Kurt Eichenwald going crazy insisting that he had proved that Wikileaks and the Russians teamed up to "manipulate" an email. Of course, the reality turned out to be that a young American part-time reporter for a Russian-owned news site, had simply misread a tweet and turned it into an article. No big conspiracy. No manipulation. And, certainly, none of that has anything to do with Wikileaks (amusingly, Eichenwald then deleted all his tweets claiming proof that Wikileaks was a part of this conspiracy, and apparently tried to silence the young reporter by telling him he'd try to get him a job elsewhere).
Perhaps even more ridiculous is DNC chair Donna Brazile trying to deny any information from any email released by Wikileaks, including one specific one that she sent, apparently revealing a CNN primary debate question to the Clinton campaign prior to the debate (Brazile worked as a commentator on CNN at the time). This video is absolutely cringeworthy, starting at about five and a half minutes into this video. Brazile tries to avoid answering the question about sending debate questions to the Clinton campaign, first barely feigning ignorance of the issue, and then insisting multiple times that the emails are fake/doctored/not verified, and insisting that she did not send the email in question.
Being interviewed by Megyn Kelly, here's how Brazile tries to claim that the emails are not real, but basically comes out with a word salad of nothing, rather than simply admitting that the email is legit.
MEGYN KELLY: You're accused of receiving a debate question whether a CNN town hall where they partnered with TV One that you had this question on March 12th, that verbatim, verbatim was provided by Roland Martin to CNN the next day. How did you get that question, Donna?
DONNA BRAZILE: Well, Kelly, as I play straight up and with you, I did not receive any questions from CNN.
KELLY: Where did you get it?
BRAZILE: First of all, what information are you providing to me that will allow me to see what you're talking about? Everybody's....
KELLY: You've got the Wikileaks showing you messaging the Clinton campaign with the exact wording of a question asked at the March 13th CNN TV One Townhall debate.
BRAZILE: Kelly, Kelly, Kelly. You know, as a Christian woman, I understand persecution, but I will not sit here and be persecuted. Because your information is totally false.
KELLY: I'm getting it from Podesta's email.
BRAZILE: What you're -- well, Podesta's e-mails were stolen. You're so interested and talking about stolen material, you're like a thief that wants to bring into the night the things that you found that was in the gutter. I'm not...
KELLY: Donna. CNN's Jake Tapper came out and said this was unethical. "Someone was unethically helping the Clinton campaign." He said "I love Donna Brazile, but this is very, very upsetting. My understanding is that the email..."
BRAZILE: I love CNN
KELLY: This is Jake Tapper: 'My understanding is that the e-mails came from Roland Martin or someone around Roland Martin." He said "this is very upsetting and troubling." That's your own colleague at CNN. It's not Megyn Kelly. Who gave you that question?
BRAZILE: Megyn, once again, I said it and I said it on the record and I'll say it on the record and I'll keep saying it on the record. I am not going to try to validate falsified information. I have my documents. I have my files. Thank God I have not had my personal e-mails ripped off from me and stolen and given to some criminals to come back altered. I have my records and files. And as i said repeatedly, CNN, in the 14 years I was associated with CNN, I've never received anything. If I had a blank piece of paper, that would basically be the end of this conversation. I never get documents from CNN. Period.
KELLY (eye roll): Your email to the Clinton campaign said 'sometimes I get the questions in advance.'
BRAZILE: Uh, ma'am. Y'know. You know what...
KELLY: And CNN is saying Roland Martin gave them to you. Or someone at TV One. And they were provided to Hillary before that town hall.
BRAZILE: Well anybody who knows me... and... and... and there are a number of your colleagues as well. They know me very well. I know how I play it. I know what I do before every debate. I know what I do before every show -- even this show. I do my homework. I communicate. I talk.
KELLY: I understand.
BRAZILE: But I just, once again, let you know that... as far as I know that... that... that CNN has never provided me with questions. Absolutely. Ever. Nada. Sorry.
KELLY: Well, when you said "from time to time I get the questions in advance," what were you referring to? Because in that email you offered the exact question that one of the moderators, Roland Martin, then proposed the next day.
BRAZILE: So. So. My, my, my reference back to you, ma'am, with all respect -- and I respect you greatly --
KELLY: And I respect you too.
BRAZILE: The... the... the validity of those emails -- if I can only tell you one things, because you know, this whole episode is under criminal investigation -- but I can just tell you one thing: a lot of those emails, I would not give them the time of the day. I've seen so many doctored emails. I've seen things that come from me at two in the morning, that I don't even send. There are several email addresses that I once used, and I'm so sorry that we... these have not been verified. This is... nobody will. This is...
KELLY: I got it.
BRAZILE: This is under investigation. And let me just tell you something. If there's anything that I have, I will share. I don't have an agenda to smear anybody...
KELLY: Alright. I've got to run because we have another guest waiting...
Okay, so, here's the problem. She did send the email. And it's verified. Graham proves it in his post. The trick is DKIM (DomainKeys Identified Mail) signatures. DKIM was a system set up a while back to try to fight spam by cryptographically proving that the account that says it sent the mail actually sent the email in question. Not all email systems use DKIM, but hillaryclinton.com does use it, which is great for transparency, but bad for Donna Brazile.
Graham looked up that email in particular and found that it validates, using a Thunderbird add-on to check these things:
Downloading the raw email from WikiLeaks and opening in Thunderbird, with the addon, I get the following verification that the email is valid. Specifically, it validates that the HillaryClinton.com sent precisely this content, with this subject, on that date.
Let's see what happens when somebody tries to doctor the email. In the following, I added "MAKE AMERICA GREAT AGAIN" to the top of the email.
As you can see, we've proven that DKIM will indeed detect if anybody has "doctored" or "falsified" this email.
Graham also offered one whole bitcoin to anyone who can forge an email that still validates correctly under this method to show his confidence that the emails are verified as actually sent as is, despite Brazile's wacky performance.
Of course, the Clinton campaign keeps insisting that the emails are doctored, but fails to show any proof. Here's the campaign's Chief Strategist, Joel Benenson, saying many are not authentic:
BENENSON: Well, first of all, I'll tell you something, I haven't spent a lot of time reading through WikiLeaks e-mails.
But I will tell you this, what we know is that many are not authentic. We know that this is a hack, 17 of Russians -- no, because these e-mails, we have no idea whether they are authentic or not or whether they've been tampered with once the Russians, which 17 American intelligence agencies say are responsible for these hackings, have been manipulated. I have seen things -- I'm not going to go into details --
STEPHANOPOULOS: But you're not suggesting that those are --
BENENSON: They may well be. I don't know. I know I've seen things that aren't authentic, that we know aren't authentic. And it's not surprising. What's ridiculous about this whole conversation is that 17 intelligence agencies have said the Russians are responsible for this. Donald Trump refuses to accept it, refuses to condemn them.
Benenson is full of shit. Again, whether or not you like or dislike Wikileaks, or question Assange's motives, there's a simple fact here: the documents it's released have not been shown to be false, faked, doctored or inauthentic at all. And it's possible to verify many of them, and some have even written scripts to verify them in bulk.
The Clinton campaign, as it so often does, is making things worse for itself by being stupid. It's trying to cover up legitimate information, and the coverup always comes across worse than the original actions. Just admit that these emails are legit and move on. Lying about it is not a good look, even if that's just the way things go these days in politics.