California Appeals Court Says Section 230 Immunizes Twitter From Banned User's Lawsuit

from the being-shown-the-exit-is-not-a-breach-of-contract dept

Back in 2019, a California court tossed a lawsuit brought by a self-described feminist who had her Twitter account banned following some posts targeting transgender people. Meghan Murphy tweeted enlightening things like "men aren't women tho" and "how are transwomen not men?" She also "deadnamed" transsexuals, identifying them using their former gender/names, something Twitter's rules explicitly prohibit.

The court didn't care much for Murphy's proposed class action lawsuit, pointing out that Twitter is free to remove users and content for any and all reasons, even reasons it hadn't yet added to its official list of rules. (The deadname prohibition came after Murphy's account was permanently suspended.) This may seem unfair, but that's the rules people agree to when using a platform provided by others.

Beyond that, there's Section 230, which shields Twitter from exactly these kinds of lawsuits. The court pointed out Twitter's editorial decisions (i.e., the removing of her account and its content) do not remove the platform's Section 230 protections. In fact -- contrary to inexplicably popular belief -- Section 230 of the CDA expressly provides for good faith moderation efforts and does not limit them to removing only illegal or illicit content.

The court tossed the lawsuit and Murphy appealed. Murphy's second pass doesn't go any better than her first. And, again, it's Section 230 that's instrumental to this second dismissal. From the decision [PDF]:

Under section 230, interactive computer service providers have broad immunity from liability for traditional editorial functions undertaken by publishers—such as decisions whether to publish, withdraw, postpone or alter content created by third parties. Because each of Murphy’s causes of action seek to hold Twitter liable for its editorial decisions to block content she and others created from appearing on its platform, we conclude Murphy’s suit is barred by the broad immunity conferred by the CDA.

The court notes Murphy's attempt to route around Section 230 by claiming this is about broken contracts (the numerous changes made to Twitter's Rules over the years, as well as its promise of 30-day notice prior to permanent suspension of accounts). The court also notes it's not going to entertain a bunch of not-so-clever bullshit clearly intended to keep the court from discussing Section 230 immunity.

Murphy takes issue with both the second and third prongs of the section 230 test as they relate to her claims. She contends section 230(c)(1) cannot apply in this case because the “only information at issue is Twitter’s own promises,” not “ ‘information provided by another content provider,’ ” and because she seeks to treat Twitter not as a publisher of information provided by others, but as a promisor or party to a contract.

[...]

In assessing whether a claim treats a provider as a publisher or speaker of user-generated content, however, courts focus not on the name of the cause of action, but whether the plaintiff’s claim requires the court to treat the defendant as the publisher or speaker of information created by another. (Barnes, supra, 570 F.3d at pp. 1101–1102; Cross, supra, 14 Cal.App.5th at p. 207.) This test prevents plaintiffs from avoiding the broad immunity of section 230 through the “ ‘ “creative” pleading’ of barred claims” or using “litigation strategy . . . to accomplish indirectly what Congress has clearly forbidden them to achieve directly.”

In a footnote, the court points out that it sees through Murphy's attempted workaround because, well, it's so transparent. If there was a serious breach of contract, there'd be some cognizable injury to be addressed. There's nothing of the sort in Murphy's allegations.

Although Murphy also points to the allegations that Twitter failed to give her 30 days’ notice of the changes to the Hateful Conduct Policy and that Twitter applied its new policy retroactively as breaches of clear and well-defined promises, the gravamen of each of her causes of action concerns Twitter’s editorial decisions not to publish content—as reflected by the fact that she alleges no specific injury from the alleged notice and retroactivity violations but complains instead of the harm caused by Twitter’s ban on her and others’ free speech rights.

And precedent backs the application of Section 230 to this case -- which actually deals with Twitter's removal of a user's account and content, rather than a breach of contract. Twitter made no promises it would keep users and their accounts alive unless specific things happened. Instead, it retained its right to refuse service to users, just like pretty much any other private business in the nation.

Here, Murphy’s allegations that Twitter “enforced its Hateful Conduct Policy in a discriminatory and targeted manner” against Murphy and others by removing her tweets and suspending her account amount to attacks on Twitter’s interpretation and enforcement of its own general policies rather than breach of a specific promise.

Twitter has no contractual obligation to continue to do business with Meghan Murphy. And its decision to end this relationship is immunized from legal liability by Section 230 of the CDA. Murphy's case is dismissed for the second time and Twitter will be allowed to recover its legal costs for defending itself from this bad faith lawsuit. Murphy can always try this again in federal court, but she's not going to get any further doing that. She's only going to keep blowing her own money on bad litigation.

Filed Under: bans, california, content moderation, meghan murphy, section 230
Companies: twitter

Daily Deal: The Power User PC Software Bundle

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

The Power User PC Software Bundle has 3-year subscriptions to a suite of software products to help you recover data, erase sensitive files, and convert audio/video files. Stellar Data Recovery is an easy-to-use Windows data recovery software to get back lost documents, emails, photos, videos & many more from HDD, USB, memory card, and other devices. Stellar Data Recovery for iPhone is an efficient DIY software to recover lost data from all iOS devices, iCloud, and iTunes backup files. BitRaser File Eraser is secure software that permanently wipes sensitive files stored on a laptop or desktop PC. Stellar Repair for Photo software repairs corrupt photos and restores your prized memories. Stellar Converter for Audio Video converts videos and audio files to various popular formats, having different codecs, frame rates, resolution & bitrates. Plus, it features utilities for video editing, GIF creation, metadata insertion, and more. The bundle is on sale for $60.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Former US Ambassador Sues Apple Because Telegram Users Are Making Him Feel Scared [Update]

from the yeah-i-don't-know-either dept

Here's an interesting lawsuit, brought to you by some familiar names. And by "interesting," I mean "exceedingly stupid."

The lawsuit [PDF] was filed by "Ambassador Marc Ginsberg." Ginsberg last served as an ambassador in 1998. And yet, that title is being used to name him as the plaintiff. The defendant is Apple. In the mix (but not a defendant) is Telegram, a popular and often controversial messaging app that has served as a mouthpiece for alt-right personalities and others who have been banned from more mainstream social media services.

Ginsberg also runs the Coalition for A Safer Web (the co-plaintiff in this lawsuit), a non-profit whose mission is "inter alia, to promote new public/private partnerships to facilitate the expeditious removal of extremist and terrorist incitement and instruction content from social media platforms." The executive team at CSW includes Dr. Demetrick Pennie, a former Dallas Police sergeant and, according to the site, "leading CDA 230 expert."

Here's some of Dr. Pennie's 230 expertise at work:

In January, Dallas Police Sergeant Demetrick Pennie sued [PDF] Twitter, Google, and Facebook, claiming they were directly responsible for "radicalizing" Micah Johnson, who shot and killed five police officers in Dallas, Texas. According to Pennie, the social media companies actively allowed and encouraged terrorist use of their platforms to spread their message and attract participants.

Pennie's lawsuit was tossed because the court could find nothing linking terrorist organization Hamas to the Dallas shooter, despite Pennie's baseless proclamations otherwise. And his lawsuit was so off-base -- suing social media companies over the shooting of cops by a Dallas resident -- the court couldn't even be bothered to address the Section 230 ramifications. Pennie was represented in this case by Keith Altman of Excolo Law (often in conjunction with 1-800-LAW-FIRM), who has filed dozens of similarly stupid lawsuits trying to hold social media companies directly responsible for the violent acts of terrorists.

"Ambassador" Marc Ginsberg is suing Apple because of content Telegram users post. I'm not even kidding. And he's being represented by ex-Excolo litigator Keith Altman, who has moved on to Lento Law Group. But he's apparently still doing the same kind of litigation: suing the wrong parties over things other people are doing or have done.

The lawsuit features two plaintiffs (Ginsberg, Coalition for a Safer Web) because CSW employs Ginsberg and provides him with an iPhone. Apple is the defendant because it has refused to remove Telegram from its app store. The lawsuit is full of relevant facts and evidence, like this:

Currently, Defendant Apple sells the iPad Mini 5 for $399+, the 2020 iPad is $329+, the 2020 iPad Air is $599+, the 12.9-inch iPad Pro is $999+, the 11- inch iPad Pro is $799+, the 12.9-inch iPad Pro is $799, and the 11-inch iPad Pro is $649+.

And this:

Defendant Apple sells the Series 3 Apple Watch for a starting price of $199, the Apple Watch SE S5 for a starting price of $279, and an Apple Watch Series 6 for a starting price of $399.

Ginsberg claims the Telegram app violates Apple's developer guidelines and California's hate speech law and should be removed from the app store. Because Apple hasn't removed the app, it has been downloaded and used by people who engage in anti-Semitic speech. (Ginsberg is Jewish.) Because Telegram refuses to remove this content, it somehow leaks into Ginsberg's life through the app store -- even if Ginsberg has never downloaded the app or engaged with its users.

Defendant breached their duty by continuing to host Telegram on the App Store despite Defendant’s knowledge that Telegram was being used to incite violence including violence against African Americans and Jews.

Ambassador Ginsberg is a Jewish person whose professional work requires he maintain a presence in the public eye.

As a result of this Anti-Semitic campaign that was coordinated on the Telegram app, Ambassador Ginsberg is forced to live in apprehension of religiously motivated violence being perpetrated against him.

Ambassador Ginsberg’s fear of religious violence has caused him substantial emotional harm including depression and anxiety.

All of this may be true. But suing Apple over distressing content carried on Telegram isn't going to work. Apple doesn't have a duty to remove anything from its app store that may cause distress to anyone. If anyone's responsible for the racist content being spread on Telegram, it's the people posting it. That targeted harassment is possibly being aided by a chat app is concerning, but Apple isn't culpable for the actions of users of an app it allows customers to download and use.

And conclusory arguments like this aren't going to convince a judge otherwise.

If was foreseeable to Apple that by allowing Telegram to continue to be available on the App Store that Apple’s conduct could lead to fear of violence by individuals, such as Ambassador Ginsberg.

By failing to remove Telegram from the Apple App Store, Defendant has proximately caused Ambassador Ginsberg’s emotional distress.

Plaintiff Ambassador Ginsberg has suffered injuries in an amount that exceeds $75,000.

The arguments get even worse. Ginsberg claims Apple deceived him into purchasing an iPhone by promising to enforce its app store restrictions -- restrictions Ginsberg claims are violated by Telegram remaining available. But Telegram appears to comply with Apple's rules for apps relying on third-party content because Telegram allows users to block accounts/content, report violations/abusive accounts, and provides contact info for users seeking to have questions and concerns addressed.

Somehow, Telegram's continued presence in the app store has rendered Ginsberg's phone nearly useless.

Defendant’s failure to enforce their own guidelines against Telegram has caused Ambassador Ginsberg and CSW to suffer economic loss by being deprived of a key benefit of the purchase and use of the Apple iPhone XR.

I don't see how this makes it past a motion to dismiss. Ginsberg has a problem with Telegram users' content. So he's suing… Apple. Even assuming Apple is wrong to allow Telegram in its app store, Telegram is multi-platform. It has an Android app and a desktop version. The racist conspiracies Ginsberg believes are targeting him and causing him verifiable, recoupable harm could have originated on other platforms. Suing Apple into submission isn't going to stop the behavior that's bothering Ginsberg. It's only going to enrich Ginsberg.

And that appears to be the whole point of this lawsuit: to hit the biggest target with the broadest allegations and hope for a quick settlement. There's nothing in here that carries any legal weight or explains why Apple should be held responsible for the racist content that has (allegedly) caused Ginsberg distress.

UPDATE: Ginsberg has now sued Google for the same thing, claiming Google isn't protecting him from Telegram users' content by allowing it to remain in the Google Play store. That covers another outlet for Telegram, but once again, suing Google isn't going to stop Telegram users from posting anti-Semitic content or otherwise making Ginsberg feel unsafe.

Filed Under: 1st amendment, demetrick pennie, hate speech, intermediary liability, keith altman, liability, marc ginsberg, section 230
Companies: a safer web, apple, excolo law, google, lento law group, telegram

Broadband Monopolies Keep Getting Money For Networks Never Fully Deployed

from the round-and-round-we-go dept

As we've noted a few times, there's an underlying belief in American tech policy that if we just keep throwing money at entrenched broadband monopolies we can lift US broadband out of the depths of mediocrity. But as we've noted more than a few times, heavily subsidizing a bunch of regional monopolies, while not doing anything about the conditions that created and insulate those monopolies, doesn't result in much changing. It's especially ineffective when you don't really punish ISPs for decades of taking taxpayer money in exchange for network upgrades that almost always, like clockwork, wind up unfinished.

The latest case in point: in 2015, regional monopolies CenturyLink and Frontier Communications took nearly $800 million in taxpayer funds to expand broadband to underserved areas they deemed too expensive to wire themselves. And guess what happened:

"The deadline to hit 100 percent of the required deployments passed on December 31, 2020. Both CenturyLink and Frontier informed the FCC that they missed the deadline to finish deployment in numerous states."

CenturyLink rather coyly acknowledged that it failed to meet deployment milestones in more than 25 states. Frontier failed to meet its deployment targets in around 17 states. Under the law, ISPs have a year from the point they finally inform the FCC that haven't done what they promised to... actually do what they promised.

And while that same law says the the government can take back taxpayer funding "equal to 1.89 times the average amount of support per location received in the support area," plus another ten percent of the carrier's total funding in that area, that often never happens. ISP lawyers routinely tap dance over, under, and around those milestones; and penalties are particularly pathetic when there's a captured regulator like outgoing FCC boss Ajit Pai at the helm.

A shining example of this lack of accountability is Frontier Communications, which we've long held up as a stunning example of monopolization and corruption in states like West Virginia. This is a company that time, and time, and time again has failed to meet its obligations tied to taxpayer subsidies, and in some instances was even caught defrauding the government. The federal response to this? To throw yet more taxpayer and ratepayer money at the company via the recent, scandal-plagued Rural Deployment Opportunity Fund auction:

"CenturyLink and Frontier are both getting more money from the FCC in the new Rural Digital Opportunity Fund, with CenturyLink getting $262.4 million spread over 10 years and Frontier getting $370.9 million over 10 years.

"Sen. Shelley Moore Capito (R-W.Va.) recently urged the FCC to block Frontier's new funding, saying that "Frontier has a documented pattern of history demonstrating inability to meet FCC deadlines for completion of Connect America Fund Phase II support in West Virginia."

Folks in DC (especially the Ajit Pai types) claim they're focus is "lifting burdensome regulations to boost network investment." In reality, they've effectively ceded all policy decisions to regional monopolies, which they're utterly incapable of holding accountable for much of anything. When the data then shows that this clearly and obviously only results in less competition, stifled investment, wasted money, and mediocrity, the impulse is almost always to pretend that this data isn't real... then double down on the same decisions that brought us there. Rinse, wash, repeat.

Now with COVID highlighting broadband's importance in an entirely new way, there's a massive new push to solve the problem by throwing more money at it. But until and unless policymakers embrace polices that specifically target the dominance of entrenched monopolies, driving more competition to market, we're not getting off this ridiculous hamster wheel.

Filed Under: broadband, broken promises, fcc, promises, subsidies, taxpayers
Companies: centurylink, frontier, frontier communications

Court Says There's Nothing 'Reasonably Suspicious' About The Odor Of Marijuana In A State Where Marijuana Is Legal

from the this-should-be-obvious dept

When cops complain about marijuana legalization being the slippery slope to a crime-ridden, apocalyptic hellhole, they're really only complaining about the removal of one of their favorite excuses for searching vehicles, houses, and people without a warrant.

For years, the odor of marijuana has been a blank check for warrantless searches. But when marijuana possession is no longer a crime, it stands to reason the odor of marijuana is no more "suspicious" than the odor of gasoline or fresh bread or a litter box. These are all just things now -- non-criminal things. And yet, cops can't seem to let this go, even years after the contraband is no longer contraband.

A recent decision [PDF] by an Oregon appeals court -- a state where marijuana has been legal since 2015 -- reaffirms the legality of possessing marijuana and firmly reminds the state's law enforcement they need far more than a whiff of marijuana to engage in further hassling of citizens. (via FourthAmendment.com)

In this case, a state trooper followed his nose to an arrest for drug trafficking. It started with a traffic stop:

Defendant was driving a rental car from Grants Pass, Oregon, to Denver, Colorado. He was stopped for a traffic violation while driving on Highway 140 in Lake County. The trooper who stopped him smelled an “obvious” odor of “marijuana” upon approaching the car. Defendant did not appear to be impaired or intoxicated. Defendant did appear to be nervous—he had shaky hands and a slightly shaky voice when handing over his driver’s license and rental agreement. From training and experience, the trooper knew that Grants Pass is a “source city” for marijuana, that Colorado has a market for “low-cost high-quality marijuana out of Oregon,” and that people “commonly” use rental cars to unlawfully transport marijuana to avoid the risk of forfeiting their own vehicles if caught.

Using nothing more than his "training and experience" and the "obvious" odor of marijuana, the trooper concluded the defendant was trafficking drugs. He extended the stop to ask more questions. The defendant ultimately admitted he was driving 17 pounds of marijuana to Denver, Colorado.

But does all of this (which really isn't that much) add up to "reasonable suspicion?" The court says it doesn't. First, the court says the driver's nervousness is a non-factor.

One of the facts—defendant’s nervousness—is not significant to our analysis. As we have recognized repeatedly, “nervousness alone is entitled to little weight when evaluating reasonable suspicion.”

Nor is the driving of a rental car from one state to another, no matter what the trooper may have imagined the purpose for traveling from Oregon to Colorado was.

As for the fact that defendant was driving a rental car from Grants Pass to Denver, the act of traveling on a public highway known to be part of a “drug trafficking corridor” does not give rise to reasonable suspicion that any particular person traveling on the highway is trafficking drugs.

As the court notes, interstate highways are used by everyone, not just drug traffickers. To assume efficient travel is purely the domain of traffickers is ridiculous.

So it all comes down to the trooper's powerful sense of smell and an odor which -- in the absence of anything else suspicious -- is indicative of nothing, given the state's legalization of marijuana.

With that in mind, we note that, beyond the odor of marijuana being “obvious” when the trooper approached defendant’s car, there was no evidence as to how strong the odor was. A very small amount of marijuana may create an “obvious” odor, depending on the circumstances. There also was no evidence as to whether the odor was of fresh marijuana (as the trooper’s suspicion of delivery might suggest) or burnt marijuana (as his consideration whether defendant was impaired or intoxicated might suggest). Nor was there evidence about the locus of the odor, such as it coming from defendant, his passenger, the luggage in the back seat, or the trunk.

Furthermore, identifying an odor gives no one -- not even a well-trained trooper -- any idea how much marijuana is being smelled.

Finally, there was no evidence that the trooper had training or experience that led him to recognize what he smelled as fresh marijuana in a larger quantity.

This may be bad news for the state's drug task forces, but maybe they should concentrate on illegal drugs that are far more dangerous and corrosive to people's health. Weed may make for easy busts, but when it's legal, it takes a whole lot more to make its odor suspicious. Finding in favor of the state would subject a wide swath of law-abiding citizens to extended traffic stops and warrantless searches.

We are unprepared to say that, as to any person driving a rental car on a public highway in Oregon that is also used by drug traffickers, any odor of marijuana gives rise to reasonable suspicion of unlawful delivery of marijuana.

It's a long stretch to move from "smells like marijuana" to "this is drug trafficking." The trooper took that leap of faith and lucked out. But only momentarily. The evidence is suppressed and the state no longer has the evidence it needs to convict this driver of drug trafficking.

Filed Under: 4th amendment, oregon, reasonable supicion

Louisiana Legislature Approves Tepid Police 'Reforms' That Won't Do Much To Give The State Better Police

from the that-which-barely-even-wounds-you-makes-you-stronger dept

Police reform efforts are being mounted all over the nation, but very few appear to be capable of creating any lasting, positive changes. Reforming law enforcement is difficult to do. Legislators, for the most part, still "back the blue," if for no other reason than cops are also government employees. Powerful police unions are firmly entrenched, providing the biggest obstacle to reform -- fully capable of gutting reform bills by leaning on legislators and threatening less law enforcement activity.

The Louisiana legislature has finally agreed to some recommendations from a state task force. The best recommendations, however, were excised from the final proposal, leaving state residents to deal with law enforcement agencies which won't really have to change much of anything to comply with the minimal changes.

Perhaps the most significant change is this, which shows you just how little will be changing for the state's cops.

Reduce the amount of time an accused officer has to secure counsel from 30 days to 14.

This just means officers will be answering questions a little bit sooner when under investigation. On the other hand, the task force approved extending the length allowed for internal investigations from 60 days to 75 days, meaning it will be at least another two weeks before the public is informed of the outcome… if it's even informed at all.

There's a chokehold "ban" that isn't an actual ban, allowing officers to use chokeholds if they "believe" they or someone else is in danger. The same sort of faux ban now exists for no-knock warrants.

Ban “no-knock” warrants unless an affidavit establishes probable cause that such a warrant is needed to protect an officer from death or bodily harm. Officers still would have to identify themselves as uniformed officers and provide audible notice that they are entering a building.

So, pretty much the same standard as before for no-knock warrants. The only difference is officers will have to identify themselves when serving no-knock warrants -- something they still won't have to do until after they've already entered.

There are demands for additional training and a mandate for the hiring of minority officers. The reforms address things that should have already been in place, like requiring agencies to report anything that might harm an officer's credibility to prosecutors (but not, notably, to defense lawyers) and "incidents" triggering investigations.

Another small positive is a mandate to create a process to revoke an officer's license if they commit misconduct. Currently, an officer's certification can only be pulled if they are convicted of a crime. There's also a new requirement that officers activate dashboard cameras when exiting their vehicles. The reforms will also apparently lead to similar body camera requirements, indicating nothing approaching this is already in place.

But it could have been a much stronger set of reforms. But the task force -- composed mainly of government officials -- voted down recommendations that could have resulted in lasting, positive change.

First, the task force rejected a recommendation that all investigations of officers be performed by an outside law enforcement agency. The status quo will remain in place, allowing departments to investigate their own officers -- something that tends to lead to exoneration.

And the task force also refused to hold officers to the same standard the government holds citizens accused of criminal wrongdoing.

The group voted down [Rep. Ted] James’ proposal to ban officers under investigation from reviewing their body camera footage before meeting with investigators. He said going over the footage with their attorney before making a statement to an investigator could help an accused officer fabricate a story to escape punishment.

Other members found James’ proposal excessive. They said taking a look at the footage helps an officer refresh their memory about the incident.

Sure, it might "refresh" their memory. But it's more than accused citizens get to do. They're not allowed to review recordings of any alleged criminal acts before talking to investigators. There's no reason officers should be given more due process than the people they serve, but government reps and law enforcement officials often seem to believe accused officers should be given a head start on investigations, building up a defense before even being questioned.

This isn't really reform. It's the enactment of bare minimum expectations. This is what Louisiana should already have had in place. There's no reason to applaud something other states would consider to be the foundation to erect reform efforts on.

Filed Under: louisiana, police, police reform

BMG, Aggressive Champion Of Copyright Enforcement, Accused Of Copyright Infringement By Jehovah's Witnesses

from the can-I-get-a-witness? dept

Readers here will not need to be reminded that BMG, a prolific music label, is also a prolific enforcer of copyright. BMG has been party to some of the most notable instances of copyright enforcement, from its lawsuit against Cox, to its use of Rightscorp to troll internet users and lie to them, up to and including taking down news videos of President Obama singing an Al Green song. There are plenty more examples after those, leaving anyone perusing them with the distinct impression that BMG super-duper respects the strictest enforcement of copyright laws, presumably in order to protect creators of content.

But that wouldn't seem to be the case if the accusations from the Jehovah's Witness affiliated Watch Tower Bible and Tract Society are true. See, BMG is the publisher for artist Aled Jones' album Blessings, which is essentially a collection of religious songs from a wide variety of faiths. Jones included a Jehovah's Witness song, kicking off a shit storm.

The problem lies in a song on the album called “Listen, Obey and Be Blessed”, a work owned by the Watch Tower Bible and Tract Society, the supervising body and publisher for the Jehovah’s Witness religious group. The appearance of this song on a commercial album immediately raised alarm bells among the religion’s followers who, through their teachings and knowledge of their faith, knew this track shouldn’t have been used in this manner.

And so a lawsuit was filed. BMG is listed as the defendant alongside various John Does, all of whom Watch Tower accuses of violating its copyrights on the song. The group has a copyright registration on the song via a song book it constructed. Watch Tower also is the only authorized entity for licensing the song, which it has only licensed to other parts of the Jehovah's Witness organization. Watch Tower also reached out to Aled Jones prior to the album's release informing him that he didn't have permission to use the song. At that point, BMG responded, indicating it had a license from GEMA, the German rights society. And that, friends, is where things get really weird.

Despite the claims from both music outfits, Watch Tower insists it never approved licenses. This appears to be supported in a response from GEMA, which told the religious group that BMG UK had asked for a license but the request was denied because GEMA had no rights to license the work.

The buck was then passed to BMG in the US, who were apparently in the process of obtaining a compulsory mechanical license to use the song. However, Watch Tower says the necessary procedures weren’t followed so that licensing opportunity failed. As a result, BMG is guilty of copyright infringement and causing reputational damage to the entire religion.

I mean, if BMG published the album including the song before it had gone through the process to obtain the mechanical license then... yeah. I suppose there's a chance that at trial BMG could come up with some kind of evidence that it had procured a proper license for the song, but it sure seems like if such evidence existed it would have been presented prior to the lawsuit being filed at all.

Which would make BMG, fervent protectors of copyright, nothing but a bunch of dirty ol' pirates. Hypocrisy of this kind is by no means rare, but it still always amazes me how much you can rely on the most ardent enforcers of copyright eventually being found out to have violated copyright themselves.

Filed Under: aled jones, copyright, jehovah's witnesses, listen, obey and be blessed, piracy
Companies: bmg, watch tower bible and tract society, watchtower

South Carolina Justices Seem Unimpressed By Government's Inability To Honestly Answer Questions About Forfeiture Abuse

from the inartful-dodger,-esq. dept

South Carolina's civil asset forfeiture programs are abusive and unconstitutional. That was the conclusion reached by a South Carolina court late last year.

This Court finds that South Carolina's forfeiture statutes violate both the federal and South Carolina constitutional protections against excessive fines by permitting the government to seize unlimited amounts of cash and other property without regard to the proportionality of the crime that may have been committed. Indeed, they allow the government to seize unlimited amounts of cash and other property when no crime has been committed, without a criminal conviction and without proof of a crime having been committed beyond a determination of probable cause.

The programs in South Carolina lend themselves to abuse by allowing state law enforcement and prosecutors to claim 95% of anything seized. Law enforcement agencies see the largest portion: 75 percent. Another 20 percent goes to prosecutors. The state itself takes the other five percent.

This is why the state's drug warriors do very little to stop the flow of drugs into the state. Officers patrol the outbound lanes of interstates, hoping to grab cash from dealers after they've offloaded their goods in the state. And, with 95% of the seizure in play, it makes more sense to let the person leave than go through the trouble of pursuing a conviction.

Once the process starts, it barely moves forward at all. There is no time limit on forfeiture proceedings. The law only says proceedings must be started in a "reasonable amount of time." In some cases, prosecutors have waited more than two years to initiate forfeitures. During that time, the person whose property has been taken has no way to contest the seizure, much less attempt to reclaim their stuff.

The state government -- at least the agencies that directly profit from it -- don't want to see these programs ended. The state's Supreme Court has been asked to make a final declaration on the constitutionality of civil forfeiture in South Carolina. While the question is still open, all forfeiture cases in the circuit where it was ruled unconstitutional have been put on hold.

The government wants these moving again. But its arguments -- and its legal rep's apparent inability to provide straightforward answers to the court -- seem to be pushing the state Supreme Court towards siding with the circuit court.

State Supreme Court justices pressed an attorney defending South Carolina’s civil asset forfeiture law with dozens of questions on Wednesday about the practice’s legitimacy, the timing of cases being resolved, and whether the state’s system of seizure and forfeiture leads to frequent abuses by police.

The state's legal rep, James Battle, appeared to be evasive when questioned directly about the programs' potential for abuse, leading to his being shut down by an SC justice before he could start talking his way around the question.

“Wouldn’t you agree that the application of our forfeiture statute, I’m talking generally about application of the statute, has resulted in abuses, disproportionate forfeitures and is a legitimate cause for concern?” Justice John W. Kittredge said.

Battle started to answer, and Kittredge said, “I don’t want you to answer the question by filibuster, and I think you just answered because you’re not willing to acknowledge that the application of our forfeiture statutes in South Carolina have resulted in abuses.”

Battle finally acknowledged the system could be abused, but refused to acknowledge it had been abused.

Battle also claimed the courts could prevent abuse, even if the initial seizure was abusive. While it's true courts are a check against abuse, very few forfeiture cases are actually handled by judges as the small amounts of cash most frequently taken aren't worth the expense of challenging in court.

Justice Kaye Hearn asked Battle if law enforcement having a financial stake affects how they operate. Battle said it can, but a judge must approve the forfeiture.

“So I guess your answer is, even though it may have been improper on the front end, at the tail end of this process it gets fixed by the court?” Hearn said.

“Exactly,” Battle replied.

Another justice pointed out Battle's evasiveness, even as he evaded another direct question about the number of times cases are dropped in exchange for seized property. Battle's response was to claim he only worked with civil cases so he had no idea if this happened or how often. This prompted Chief Justice Donald Beatty to flat out state he "didn't believe" Battle's claim of ignorance.

This isn't over. And oral arguments can sometimes be misleading. But a system that has been repeatedly abused -- and provides all the incentives needed to encourage perpetual abuse -- looks to be on the ropes in South Carolina. The programs are so problematic the government's lawyer can't answer questions directly or honestly without confirming the suspicions of the state justices. That doesn't bode well for the future of forfeiture in the state.

Filed Under: asset forfeiture, civil asset forfeiture, forfeiture abuse, james battle, legalized theft, south carolina

Google Threatens To Pull Out Of Australia Entirely; Australians Demand That It Both Stay And Pay News Orgs For Giving Them Traffic

from the how-does-this-make-any-sense dept

For the last year, we've been highlighting how Australia's rush to create a Google News tax is so stupid. It follows similar efforts in Europe and a few other places, where newspapers that spent years dismissing the internet and doing little to adapt, are now whining that Google is... sending them free traffic and not paying them for it.

It's truly bizarre. Google sends lots of traffic to news organizations. Tons of news organizations employ search engine optimization experts who work hard to get even more traffic from Google. But... around the globe, many of them are demanding that Google also pay them for sending them traffic. Back in 2014, Google shut down its Google News offering in Spain when that country passed a similar law. Over the past few months, Google has tried to explain to Australian officials just how incredibly stupid this plan is, but Australian officials (and the newspaper lobbyists down under) don't seem to care.

Last week, Google finally pulled out the nuclear option, saying that it might just pull out of Australia entirely if the law passes. That's an even bigger threat than the one Facebook made a few months back, when it claimed it would likely block the ability of anyone in Australia to share news on Facebook. But Google says it may shut down entirely in Australia:

“If this version of the code were to become law, it would give us no real choice but to stop making Google search available in Australia,” Silva told senators. “And that would be a bad outcome not only for us, but also for the Australian people, media diversity, and the small businesses who use our products every day.”

Australian officials flipped out that a private company that they're looking to tax at ridiculous levels might... no longer want to do business in their country. The country's Prime Minister, Scott Morrison, claimed that the country won't "respond to threats," but his administration seems to have no problem issuing more threats. Australia's Treasurer, Josh Frydenberg, said that it's "inevitable" that Google and Facebook will have to pay news organizations for daring to send them free traffic.

Frydenberg also claims that Australia can be a "world leader" in passing such legislation, apparently totally ignorant of how many times other countries have already passed similar legislation, and how poorly it's gone. The Bloomberg article there mentions that pulling out of Australia would open up the market to competitors, but that assumes any of them would want to pay the pointless news tax as well.

The hubris level here remains astounding. Google and Facebook send these companies traffic. For free. It's free advertising. These news orgs hire experts to help them perform better on Google and Facebook. And now they want to be paid for it too? While politicians are pulling out the fainting couch in saying "how dare" Google and Facebook threaten to block the entire country, perhaps they might want to look more closely at why they're driving away these successful companies that their citizens (and constituents) clearly like using.

Filed Under: australia, google news, google tax, link tax, news, news tax
Companies: facebook, google