Update: We've made some corrections to this piece to clarify that, while this is a victory for Jim Sterling, it's a result of Digital Homicide agreeing to a settlement, rather than the court tossing the lawsuit, as the original suggested.
The saga of game developer Digital Homicide whipped through our pages like an idiotic windstorm. This gust of blustery nonsense started with the company's lawsuit against a game critic, Jim Sterling, then moved on to it suing Steam users over reviews they wrote, before twirling into the stage where Valve banned Digital Homicide games from Steam entirely and the company stated it planned to shut down operations. All of that happened in the span of six months, which would be impressive if it weren't so sad.
Still, the resolution of the threats against Steam users wasn't the end of the story. The lawsuit against Sterling was still out there, a $10 million dollar anvil hanging over the game critic's head. Until this week, that is, when the court in which the suit had been filed dismissed it with prejudice as part of a settlement agreement between the two parties.
Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), the parties hereby stipulate and agree to the dismissal of all claims in this action, including the claims raised in the Amended Complaint of February 3, 2017, with prejudice with each party to bear its own costs and attorneys’ fees.
Plaintiff agrees to forever refrain from directly or indirectly filing against Defendant any cause of action arising from the same facts or circumstances alleged in the Amended Complaint. Plaintiff also agrees to refrain from taking action against Defendant’s business, such as sending DMCA takedown notices, without first considering whether Defendant is engaged in fair use of a copyright under 17 U.S.C. § 107, as required under federal law and Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015).
And that will be the end of that. But Sterling wasn't the only one casting a wary glance at this lawsuit. Many in the game-critiquing world watched on, wondering whether or not a court was going to allow a critic to be punished for doing his job. Were it to have happened, that would have sent a chilling effect through the gaming industry. Fortunately, it didn't.
Which isn't to say that this all ends without any blood being drawn.
What’s particularly disturbing about lawsuits like this is that, even in cases where they are clearly frivolous, as this was, they can force critics to spend significant amounts of money on legal defenses. Sterling had to hire a lawyer, Bradley Hartman, who helped convince the court to dismiss this case, which, in Sterling’s words, involved “series of allegations that were difficult to comprehend even for the one accused of them.”
“Not all threats from the Internet are idle ones, and I wouldn’t recommend anybody brush them off,” Sterling concluded.
Which is again why this country is desperately crying out for strong Anti-SLAPP laws at the federal level. Having to fend off these vacuous lawsuits with no recourse at the end is a burden without justification.
Thanks to some serious misjudgment, and incomplete knowledge of how national laws work, Getty has now (briefly) earned a reputation for another form of thuggery: censorship.
Matthew Chan runs Extortion Letter Info (ELI), a site that specializes in collecting threatening letters for various entities (usually copyright-related) and gives guidance on how to fight back against this form of speculative invoicing.
Chan, along with others, has been loudly critical of Getty's tactics. Getty likes to send out threatening letters and demand licensing fees for images it happens to see in use around the web. Visitors to ELI's forums are no less disdainful of the company than Chan is. And, the internet being the great communicator it is, this sort of criticism isn't limited solely to Chan's site.
Chan's site -- along with a couple of others -- somehow flew onto the radar of Getty's French office, which sent out a completely ridiculous letter demanding not only that Chan's criticism of the company be removed from his site (and others), but EVERY DEROGATORY COMMENT made by site visitors to be taken down as well.
I am the legal adviser of the company GETTY IMAGES.
The company GETTY IMAGES is the biggest global database. Its main activity is the supply, development and worldwide distribution of online images, videos and music under which many communication professionals made use.
Indeed, it enjoys an established reputation both domestically and internationally. However, my client found many comments which seriously jeopardize its practice on your web site www.extortionletterinfo.com …..
Indeed, the combination of the words «GETTY IMAGES» and «extortion» or «arnaque» (fraud) on the search engine Google bring us directly to your web site.
Furthermore, the regularity of the methods and of the proceedings used by our client had also been questioned, which have been described as «legalized extortion» and «Extortion Letter Scheme».
According to the judgment given by the First Civil Division of the French Supreme Court on the 12th of July 2012, this is particularly intolerable and reprehensible.
Those acts of gross disparagement seriously damage GETTY IMAGES’ image.
A similar letter [PDF] was received by The Hacker Factor Blog and Zyra.info. Chan and The Hacker Factor both responded in detailed fashion to the French legal stupidity apparently resulting from Getty Image France's legal rep Vanessa Bouchara's Google search for "reprehensible" terminology. (The third site took down the image/criticism, but left up a notice telling readers about Getty's censorship.)
Both responses to Getty pointed out the obvious: parlez-vous US law, motherfuckers?
Regardless of which corporate entity you represent in France, I inform you of the following:
1. I am a U.S. Citizen who lives and work in the U.S.
2. I do not have any business interests in or solicit any business from France.
3. My websites are hosted in the U.S., written in English, and primarily targets American readers.
As such, any content you or your client may object to on my website all firmly within the realm of U.S. laws and the First Amendment. I do not see how you can threaten me with a lawsuit being brought in a country in which I have no contact, connections, or involvement.
French law might have jurisdiction over you, your law firm, and your client operating in France. But I cannot see any way whatsoever how French law applies to me or my websites.
As noted in the 2014 letter from Getty Images, they list their address as "605 5th Ave S, Suite 400, Seattle, WA 98104 USA". Moreover, they sent their letter to my address in Fort Collins, Colorado, United States. Neither of these addresses is in France.
My 2014 blog entry includes my response letter. At the top of the response letter are the addresses of the sender and the recipient. Again, the correspondence was from a US citizen in the United States of America and to a company in the United States of America.
At no time was there any mention of France or Getty Images in France. The country of France has no jurisdiction in a discussion between a US citizen and a US company. Your repeated citations of French laws have no basis since this falls under the jurisdiction of US laws.
Someone at Getty's US HQ is now in a terrible mood. Getty's reputation in the US is far from impeccable, and now they have to deal with a French interloper throwing a one-lawyer Streisanding via international mail. An apology and retraction has already been sent to ELI and a few other sites that were affected.
Whilst operating as Getty Images’ French legal advisor, we sent you a formal letter dated December 23th 2016, asking you to cease and desist perceived libelous activity on your site.
Please disregard our previous letter, it was sent in error and accept our sincerest apologies.
Yours sincerely, Vanessa Bouchara
It's hard to say how many people were involved in this debacle as Vanessa Bouchara uses the royal (and somewhat exculpatory) "we" in her communications, but whoever was behind it needs to spend a bit more time getting to know the limits of their local laws.
from the stupid-law-fails-to-help-out-even-stupider-Sheriff dept
The Louisiana First Circuit Court of Appeals has just ended Terrebonne Parish Sheriff Jerry "Censorious Dumbass" Larpenter's attempt to silence a critic through the magic of abusing his power. The sheriff obtained a warrant to raid a blogger's house, using the state's mostly-unconstitutional criminal defamation law to justify the search. The blogger had pointed out that Larpenter's wife works for an insurance agency that provides coverage for the local government -- something that looked just a wee bit corrupt.
Larpenter didn't care for this, so he took his search warrant application -- and a complaint by Tony Alford, who runs the insurance company that Larpenter's wife works for -- to an off-duty judge to get it signed. This same judge later declared the warrant to be perfectly legal when challenged by lawyers representing the blogger. The blogger's lawyers appealed [PDF] this decision, which has resulted in the warrant [PDF] being killed. Naomi Lachance of The Intercept has more details.
An appellate court in Baton Rouge ruled Thursday that a raid on a police officer’s house in search of the blogger who had accused the sheriff of corruption was unconstitutional.
The Louisiana First Circuit Court of Appeals argued that Sheriff Jerry Larpenter’s investigation into the blog ExposeDAT had flawed rationale: the alleged defamation was not actually a crime as applied to a public official.
The unanimous ruling from the three-judge panel comes after police officer Wayne Anderson and his wife Jennifer Anderson were denied assistance in local and federal court.
The one-paragraph decision [PDF] points out that Tony Alford is a public figure and cannot avail himself of the state's criminal defamation law.
Anthony Alford, the supposed victim, is President of the Terrebonne Parish Levee and Conservation Board of Louisiana, and a public official. Consequently, the search warrant lacks probable cause because the conduct complained of is not a criminally actionable offense. The ruling of the district court denying the motion to quash the search warrant is reversed, the motion is granted, and the search warrant is quashed.
So much for Judge Randall Bethancourt's declaration that the warrant he signed was valid. And so much for the Terrebonne Sheriff's Department's "look see" Bethancourt granted earlier. The seized devices -- which included a laptop belonging to the blogger's children -- have been held by the clerk of courts, which hopefully means Sheriff Larpenter didn't sneak some peeks before having his bogus warrant tossed.
The state's top prosecutor won't be humoring Sheriff Larpenter any further.
“We respect the First Circuit decision, we have no plans to appeal, and as far as the attorney general is concerned, the case is closed,” Ruth Wisher, press secretary for the attorney general, told The Intercept.
Sheriff Larpenter still seems willing to abuse his office to shut people up, as evidenced by his inability to do so himself.
Over the month of August, Larpenter had publicly defended his position. “They need to upgrade [criminal defamation] to a felony,” he recently said on local television station HTV10.
“The media come and all the different outlets, even our local media, wrote unsatisfactory accusations about me like, ‘Oh, they got freedom of speech. They can say what they want.’ Well that’s not true,” he said.
Larpenter is wrong on both counts. Defamation shouldn't be a criminal offense. Ever. And his definition of "free speech" doesn't sound very "free." Instead, it sounds like Larpenter would prefer limits to speech he doesn't like, which is a stupid and dangerous ideal to hold while in an elected office holding considerable power. I have my doubts Larpenter thought he'd really end up with a criminal prosecution, but he's probably satisfied that he was allowed to walk into someone's home, take their stuff, and force them to spend money defending themselves from a completely bogus criminal charge.
Of course, intimidation tactics like these can sometimes backfire completely. Larpenter now looks like an easily-bruised bully and his BS attempted prosecution will likely only encourage his critics to speak up more loudly and frequently. In addition, The Intercept reports the blogger's lawyers will be moving forward with a lawsuit against the parish for Sheriff Larpenter's actions, so this may end up costing taxpayers some cash as well. Hopefully, this unneeded spending will be on their minds when Larpenter's up for re-election.
from the 'viewed-in-the-light-most-favorable-to-ignoring-tons-of-precedent...' dept
Enigma Software joined the long line of aggrieved companies who feel that legal threats and questionable lawsuits are the best form of reputation management. It sued BleepingComputer over a "defamatory review" -- which was actually just a forum post by a member that detailed (with supporting links) its questionable SpyHunter software and its "rogue tactics" over the years.
In addition to the defamation claims, Enigma Software also argued that BleepingComputer only did this to steer site readers towards its own products, alleging a handful of Lanham Act violations.
Unfortunately, Enigma Software's dubious claims have survived a motion to dismiss by BleepingComputer, thanks to some similarly dubious reasoning [PDF] by the judge presiding over the case. Not only are the Lanham Act claims given far too much credence (thanks to some twisted judicial analysis that assumes that because trademark is a part of the Lanham Act, false advertising claims under the Lanham Act are also intellectual property claims, exempt from Section 230 of the CDA), but the court's decision to allow the lawsuit to process also punches a few more holes in Section 230 protections.
Because the author of the post was a third-party contributor, BleepingComputer should not have been held responsible for the content of the post. However, the court appears to be bothered that the user in question was referred to as a "staff member" by BleepingComputer, even if it was actually a volunteer administrative post and BleepingComputer did not directly control the content of the user's contributions.
Eric Goldman, in his analysis of the decision, points out that BleepingComputer could have done a better job delineating between actual site administrators and those just helping out, along with providing more comprehensive disclaimers about "superusers" and their contributions to the site.
So what did Bleeping do wrong? In retrospect, calling super-users “staff members” is probably not the best titling. At least to this judge, “staff” sounds too much like “employee.” The court also says that site disclosures saying super-users could be “trusted to give correct…answers” meant that Bleeping communicated that these super-users were authorized to post on its behalf. I don’t see that interpretation of the disclosure at all, but it’s also easy to imagine rewording Bleeping’s disclosures to downgrade the risks. For example, Bleeping could make disclosures that super-users had been selected because of their consistently reliable advice, but they remain independent and fallible.
That being said, the court's decision does more damage to Section 230 protections by holding websites responsible for the content of certain third-party posts. This determination may be only temporary and fall apart as the lawsuit proceeds, but it still gives those filing questionable lawsuits a glimmer of hope that their dubious claims might survive to fight another day. If nothing else, the assertions made by the court will keep the lawyers fed.
Still, I’m irritated by the court’s glossy handling of the Section 230 super-user precedent. I’m also frustrated by the court’s insensitivity to how this ruling undermines Section 230. It green-lights plaintiffs to allege that a user was the site’s implied agent to survive a Section 230 motion to dismiss, even if those allegations fail later in the case. Everyone loses (except the lawyers, of course) when unmeritorious cases get past a Section 230 motion to dismiss.
Other issues present themselves as well in this decision. The statute of limitations of defamation (one year) gets an extension, thanks to the court considering certain links to older posts as "republication," flying in the face of several other decisions on the same topic. (It actually doesn't say quite as much, but refuses to "resolve the issue" at this point.)
And, on the subject of linking to content to support claims made in an allegedly defamatory post, the court seems to find that something done to deter claims of defamation is actually just the creation of a defamatory echo chamber.
The court says this conclusion is reinforced by Bleeping’s and Quietman7’s self-laudatory statements about their credibility and expertise. Thus, the court distinguishes the recent trend of judges presuming that readers don’t take online comments seriously (a trend partially attributable to the NY Sandals case). Also, “[t]he manner of Quietman7’s written presentation—one using footnotes and citations—conveyed further that his advice was based on an ‘investigation’ of verifiable facts.” (Contrast the cases holding that linking to source materials can reduce defamation liability). The court disregards Quietman7’s qualifier statements “[m]y personal recommendation” and “[i]n my opinion.”
One of the most infuriating assertions made in this decision is that Enigma Software is still, somehow, a private entity that only needs to make the most minimal of damage assertions to continue pursuing this lawsuit.
The court rejects Bleeping’s argument that Enigma is a limited-purpose public figure (which would require Enigma to allege facts showing Bleeping had actual malice) because Enigma’s complaint “does not allege any facts suggesting that ESG has taken a public position on the integrity of its business practices or the quality of its products.” FFS. While focusing on the complaint’s four corners is technically permissible under the legal standards for a motion to dismiss, the judge is allowed to take judicial notice of public statements where Enigma–LIKE EVERY OTHER BUSINESS IN THE UNIVERSE SINCE THE BEGINNING OF TIME–says it does a great job.
While this is not a decision in favor of one party or another, the judge's determinations make it clear that BleepingComputer will be paying a whole lot more in legal fees before this lawsuit (hopefully) is resolved in its favor. Enigma's claims -- not including the severely-stretched "unfair competition" assertions -- were so threadbare as to be almost nonexistent. Its defamation accusations included words not actually used in the post and some complete rewriting of certain post sentences in order to shore up its bogus claims.
Goldman's very thorough assessment of the decision does find that BleepingComputer could have done a few things in a smarter way to avoid potential Section 230 entanglements, but his overall take is that a decent anti-SLAPP law would have gone a long way towards making this lawsuit disappear before dragging the defendants into expensive discovery proceedings. While he grants that motions to dismiss are viewed in the light most favorable to the non-moving party (Enigma Software), the court here has gone out of its way to keep a highly-questionable defamation lawsuit alive -- and has done damage to Section 230 protections in doing so.
from the 'this-will-end-the-criticism-once-and-for-all!' dept
Copyright: for when you just don't feel like being criticized. (Currently available for periods up to, and including, seventy years past your death!)
Matt Hosseinzadeh, a.k.a. "Matt Hoss," a.k.a. "Bold Guy," a.k.a. "Horny Tony," runs a moderately successful YouTube channel containing his moderately well-done videos of his "characters" performing feats of pickup artistry and parkour. It's all fairly ridiculous, but considering the depths pickup artists can plumb, the HossZone videos are actually fairly tame.
According to H3H3, it all began with a demand for the removal of the video and $3,750 in legal fees racked up so far by Hoss's lawyer. From there, it got stupider. After failing to secure instant capitulation, HossZone's lawyer altered the terms of the deal. ("Pray I don't alter it stupider...") H3H3 could avoid paying any money by apologizing via their channel for misappropriating Hoss's "art," say some nice stuff about him in their apology video, and throw additional compliments HossZone's way for a period of no less than 60 days. (I am not kidding. Watch the video above.)
H3H3 refused to do so, so Hoss has now filed a copyright infringement lawsuit against Ethan and Hila Klein. Hoss also hit H3H3 with a copyright strike, despite the fact that the video central to the complaint had been set to "private" shortly after his lawyer began issuing legal threats.
Unlike others who have sought to abuse copyright to censor critics, Hoss appears to have his end of it pretty much nailed down. He has a valid, registered copyright that predates the H3H3 reaction video and his complaint isn't filled with vagues assertions about ethereal property and even vaguer assertions about how it's been violated.
That being said, detailed allegations aren't always credible allegations. It appears that fair use is still misunderstood by a great deal of the population, including those representing plaintiffs in copyright infringement lawsuits. From the complaint:
On or about February 15, 2016, Defendants published a video on their YouTube channel that copied and displayed virtually all of Mr. Hoss’s original Work (the “Infringing Video”).
The Infringing Video features the Defendants purporting to discuss the Work in what they believe to be a humorous manner but in fact reproduces virtually all of the Work as nothing more than a prop in the Defendants’ “comedy routine.”
Contrary to what Hoss's lawyer implies here, there is nothing in caselaw that forbids the use of "virtually all" of a work under fair use. Judges and juries may be more sympathetic if you don't, but this does not automatically make a work infringing, rather than fair use.
The 13 minute h3h3 productions video in questionuses about three minutes of HossZone’s skit, while the rest of the video features Ethan and Hila talking about the setting, script, character development, and even the costume design used by HossZone. They also talk about random things pertaining to their life, as most vlogs of theirs do.
The original video runs 5:25, so H3H3 used a little more than half of it, but that half only makes up about a third of the total reaction video runtime. Not that all this math makes much of a difference when fair use is raised as a defense, but it does serve two purposes: it illustrates there was a great deal of commentary surrounding Hoss's content and it appears to contradict the claims made by the plaintiff.
The Infringing Video was created and published without license from Mr. Hoss in direct violation of Mr. Hoss's exclusive rights as an author pursuant to 17 U.S.C. § 106.
Fair use does not require the obtaining of a license from a copyright holder (no matter what Sony Music claims...) because that's exactly what "fair use" is: the use of copyrighted works in a non-infringing way.
The Infringing Video does nothing to alter the original Work with new expression, meaning, or message
The Infringing Video fails to contribute a single substantive comment, criticism, or even parody to or of the original Work.
These are opinions, not factual assertions. The court will determine how substantive Hoss's take on H3H3's video is, but even those standing far outside of the IP-wonk circle can plainly see these are purely subjective statements.
Aside from the fact, as described in greater detail above, that the Infringing Video does not constitute a transformative fair use, it is also the fact that the Defendants operate the Ethan and Hila YouTube channel, where they published the Infringing Video, as an entertainment channel via which the Defendants generate advertising revenues.
People make money from fair use all the time. This argument has been debunked so often, it should ingrained in the mind of any decent IP lawyer.
What's interesting about this lawsuit is that HossZone also accuses H3H3 of filing a "false" DMCA counter notification in response to Hosszone's takedown request.
On or about April 26, 2016, the Defendants submitted to YouTube a counter notification, pursuant to 17 USC § 512(g)(3), affirming under penalty of perjury that the Infringing Video was improperly removed because it was, among other reasons, a fair use and “noncommercial.”
And if it's Hoss's takedown that delivered a strike to H3H3's account is determined to be bogus, what then? Still going to go HAM on the "perjury" angle?
Hoss's lawyer seems to take particular issue with the possibility that the Klein's may have received ad revenue from their reaction video. In addition to claiming YouTube's third-party advertising makes any uploaded video a "commercial" product, the attorney claims that most of H3H3's popularity is due to Hoss's talent and inherent likability, rather than the commentary added to the video or the rest of H3H3's video productions.
Upon information and belief, the Defendants have unfairly derived profit from the Infringing Video in the form of their YouTube channel, which generates advertising revenue, increasing in popularity during the two-month period that the Infringing Video was displayed.
Upon information and belief, the Defendants’ YouTube channel more than doubled its number of subscribers due, at least in part, to the popularity generated by the Infringing Video.
The lawsuit also claims that Hoss is so charismatic his 3-minute appearance in a video mocking him somehow resulted in the Kleins being able to generate income from Patreon and Kickstarter.
All in all, it's a fairly ridiculous lawsuit which is made worse by its apparent motivation: to remove something Matt Hoss doesn't like from the internet. Even if this somehow works out for the parkouring pickup artist, the battle is already lost. A supporter of the Kleins set up a fundraiser for their legal defense, which amassed over $100,000 in under 24 hours. Meanwhile, what's left of Matt Hosszone's web presence is being savaged by dozens of angry commenters -- most of it far more brutal than anything the Kleins said during their criticism of his video.
As we've explained over and over again, copyright and censorship go hand in hand. People who want to censor seem to love the power that copyright conveys on them. Take, for example, the Brazilian media giant Globo. As you may have heard, there's a big political fight down in Brazil, as the Congress there looks to impeach the President, Dilma Rousseff. It's a big political mess, made even more ridiculous by the fact that many of the leading voices looking to impeach Rousseff have themselves been indicted for corruption or are being investigated for corruption. Last week, David Miranda wrote an article for the Guardian, arguing that the whole thing is political, and that the corruption claim against Rousseff is just a pretext for an opposing party to gain power. In that article, he blames the major media properties in Brazil for supporting the fiction in pushing an anti-Rousseff story.
The story of Brazil’s political crisis, and the rapidly changing global perception of it, begins with its national media. The country’s dominant broadcast and print outlets are owned by a tiny handful of Brazil’s richest families, and are steadfastly conservative. For decades, those media outlets have been used to agitate for the Brazilian rich, ensuring that severe wealth inequality (and the political inequality that results) remains firmly in place.
Indeed, most of today’s largest media outlets – that appear respectable to outsiders – supported the 1964 military coup that ushered in two decades of rightwing dictatorship and further enriched the nation’s oligarchs. This key historical event still casts a shadow over the country’s identity and politics. Those corporations – led by the multiple media arms of the Globo organisation – heralded that coup as a noble blow against a corrupt, democratically elected liberal government. Sound familiar?
Globo TV was apparently not happy with that and asked the Guardian to post its response, written by the company's Chair of the Editiorial Board, Joao Roberto Marinho, who apparently is the heir to the Globo empire.
Miranda then responded to Marinho over at the Intercept, to show why Globo has been extremely biased in pushing one side of the story in Brazil. Miranda goes through Globo's somewhat sordid history as a propaganda arm, and then goes point for point debunking Marinho's claims. Towards the end he tries to show just how one-sided Globo's coverage has been:
For more than a year, one Globo-owned Epoca magazine cover after the next used manipulative, demonizingart to incite the public in favor of impeachment. The Twitter feeds of Globo’s stars — both news and entertainment — are filled every day with pro-impeachment propaganda. Even when Jornal Nacional tries to deny that it is placing its heavy finger on the scale in favor of pro-impeachment protests, it cannot help itself: It glorifies those pro-impeachment protests and gives them far more airtime than their pro-democracy counterparts:
After this, he linked to a video demonstrating all of this... but soon after his article went up, that video became this:
Yup. Globo suddenly decided to make a copyright claim on the video that was being used in an article demonstrating how its coverage has been incredibly biased. That video had been up for months before that with no problem, but just a little while after it was included in Miranda's article it was gone. Poof.
And people still want to claim copyright isn't regularly used as a tool for censorship?
Yes, the content in the video is content from Globo. But it's not taking it down over any concern over licensing issues or "piracy." It issued the takedown to clearly hide the video from the public viewing Miranda's article. It is purely a censorship move, and copyright is just a convenient tool. Thankfully, others have been reuploading the videos elsewhere, but just think what will happen if the legacy entertainment industry is successful in pushing a "notice and staydown" regime? This kind of censorship will become much, much more effective.
There are lots of dumb ways for companies to combat online critics. You can simply claim copyright over the criticism as a way to try to silence it, although that tends to end poorly for the silencer thanks to public backlash. You can go to the court to ask for an injunction against the critic as a way to try to silence it, although that tends to end poorly for the silencer thanks to the Streisand Effect. Or you can ask the courts to test whether the criticism amounts to defamation, although, again, The Streisand Effect, the public backlash, and the fact that those types of suits are rarely successful.
This story is an extended example of the last of those, with game developer Digital Homicide deciding to file suit against game critic Jim Sterling to the tune of ten million dollars, all because Sterling's shtick is to post online reviews mocking what he considers to be crappy video games.
Digital Homicide claims Sterling, whose real name is James Stanton, has "falsely accused [Digital Homicide] and caused damage" to the company. According to court documents, the company is asking for $2.26 million in direct product damage; $4.3 million in emotional, reputational, and financial distress; and $5 million in punitive damage requests. That adds up to $10.76 million, and it's nothing to scoff at.
The claims are, frankly, ludicrous, but they're the kind you occasionally see leveled against an online critic. As most of you will know, the claims being made will typically need to be shown to have been willfully fallacious to get past what will surely be Sterling's defense, that his criticism is either his opinion or that it is valid, or both. The monetary damages asked for are equally silly. The only real potential meat to this whole thing is the accusation that Sterling falsely accused Digital Homicide of committing offenses or crimes.
In an article titled "Digital Homicide And The Case Of The Sockpuppet Developers," Sterling remarked that another Digital Homicide game, Galactic Hitman, had artwork taken from elsewhere. Specifically, it may have been lifted from an artist on DeviantArt. Sterling later edited the piece to say it "may" have been purchased from Shutterstock, an online repository of media. In the lawsuit, Digital Homicide presented a July 2015 receipt for a Shutterstock subscription.
As Sterling dug into other companies Digital Homicide was connected to, he discovered that the people behind the studio had also started a company called ECC Games, which seemed to take its name from a different game publisher in Poland. Digital Homicide points to a line in Sterling's article where he argued it could lead to "potential legal trouble for folks who rebranded and accidentally defamed a completely different studio." In the piece, Sterling spoke with the Polish publisher, who said it had "already taken legal actions."
In other words, you have a commentator or critic raising the issue of potential legal issues, while not directly claiming them to exist as a matter of certainty. That couching language is likely going to mean that the false accusation portion of the suit will fail, as there's very little difference between how Sterling discusses this and how any media outlet deals with the existence of potential criminal or civil actions.
And that's really all a side show, because the fact is that Digital Homicide appears to be chiefly angry about the criticism of its games as leveled by Sterling.
The drama began when Sterling published a 10-minute video of Digital Homicide's first-person shooter Slaughtering Grounds in November 2014, dubbing it the "new" worst game of 2014 "contender" and a game where "the awfulness just doesn't stop." The game did not get much attention outside of Sterling's videos; in fact, one of Sterling's critical videos is the second Google result for Slaughtering Grounds and the first result when you do a search on YouTube. In response to this criticism, Digital Homicide published two videos — both removed, though archived on Sterling's channel — where the developers call Sterling "a fucking idiot" and accuse him of not playing the game correctly.
In another — again, now deleted — post, Digital Homicide explained its position.
"In the sole instance of Jim Sterling's 'Squirty Play' video," said the developer, "We find the usage of the terms 'WORST GAME OF 2014 CONTENDER!' and 'Absolute Failure' to describe the entirety of our product while not actually evaluating it in its entirety unfair and unreasonable use of our copyright material. While the reader may disagree with our claim, we believe the unbiased perspective of a court will agree there has been a violation of our copyright and for this reason we will be pursuing an attorney and proceeding with our complaint."
That last bit had originally come along with a DMCA takedown of Sterling's review, but Sterling appealed the takedown to YouTube, which put the video back up, because the claim that this kind of criticism is copyright infringement is insane.
So, how's everyone in the public reacting to the DMCA takedowns and the lawsuit? Well, Digital Homicide had put up a crowdsourcing site to fund its legal efforts against Sterling, but had to take it down because of the sheer number of people trolling the page. The press, meanwhile, is reporting on this issue, and not in a manner favorable to Digital Homicide. In true Streisand Effect form, Sterling's reviews are spreading as a result, and Digital Homicide comes off looking petty.
In other words, they had better win that ten million dollars, because it doesn't sound like the public is going to be happily buying their games at the same volume as they did before all this nonsense began.
Last summer, our writer Tim Cushing put together something of an omnibus post of stupid DMCA takedown requests, none of which probably deserved their own unique post. One of the individuals he highlighted later went on something of a wacky defamatory crusade against Tim, posting blatantly false information about him, and claiming that Techdirt is actually owned by some telecommunications company I'd never even heard of, that is also a patent troll, or something. But now another entity in that very same post has also decided it's upset about the post, and has taken a slightly different strategy.
The company in question is Andromedical, makers of the creatively named "Andropenis," which is (you guessed it) a penis pump. The company appears to do two things aggressively: push a highly questionable "study" claiming its device is effective... and issue questionable takedown demands. Tim was mocking the fact that Andromedical was asking Google to take down results from the competing Bing search engine, but also the fact that it appeared to be promotional images of the product. So, why are we subject to a takedown notice?
BRING ON THE KITCHEN SINK OF LEGAL THREATS!
In what is announced via email as a "DMCA notice," (and sent to a personal email address of mine, rather than our publicly listed DMCA agent email address) is apparently a combination notice of all sorts of things we didn't actually do:
I write on behalf of the Legal Department of Andromedical, S.L. Company, as an Intellectual Property abuse report to your company. This email is part of a Counterfeit Notification to INTERPOL and must be considered as an official Cease and Desist, Digital Millenium Copyright Act (DMCA) Notification.
We have detected that your website is using our trademark Andropenis® and our copyrighted images without being licensed to do so. It is illegal to use Intellectual Property (IP) without license in your website, whether or not you are selling the actual device associated to our copyrighted properties. Thus, you are infringing the law by using trademarked and copyrighted properties of Andropenis® without license and without IP rights. Please, proceed to delete immediately the following pages and the images in them from your website:
Yeah, so, first of all, it's a DMCA notice, which covers copyright and not trademark. The fact that we don't have a license is meaningless either way. First of all, we can use the ridiculous Andromedical or Andropenis name as much as we want without violating the trademark, because we're using it in a manner that is clearly descriptive of the product, and not in commerce. It's also not being used in a manner to confuse consumers or dilute the brand. So, just the fact that it suggests merely mentioning the name without a license is infringing is ludicrous and wrong. You're doing trademark law badly.
On the copyright question, we did post an image of some of Andromedical's own promotional images, but in a manner that was clearly fair use. It was part of our news article, explaining Andromedical's abusive DMCA practices, and as part of showing the kinds of images it was taking down, we showed a few thumbnails of those images. This is obviously fair use, so Andromedical can take its DMCA notice and pump it.
Then we get to the whole "Counterfeit Notice to INTERPOL" -- to which I can only say... huh? There's no counterfeiting. We're not selling any products in our post -- legitimate or counterfeit. We're just posting a story about the company, which is perfectly legal to do.
Nevertheless, the company insists that if we don't take down our article, it will follow through with a list of increasingly aggressive/ridiculous tactics:
You have one week after the reception of this email to delete any and all images of Andromedical and/or Andropenis® products, any and all Andromedical and/or Andropenis® trademarks, and any and all Andromedical and/or Andropenis® information and references from your websites. Legal actions against your company will be stopped if these actions are undertaken. If you fail to do so, our Legal Department will:
Remove your company’s visibility in GOOGLE, Yahoo and/or other search engines, such as Yahoo! or Bing, via DMCA notices. Please find attached to this email the DMCA notice in question. (https://www.google.com/webmasters/tools/dmca-notice?rd=1&pli=1&authuser=1 )
Block your payment gateways via intellectual property abuse reports to your payment processors, VISA, PAYPAL. (http://usa.visa.com/about-visa/our-business/intellectual-property-rights.jsp?ep=v_sym_ReportBrandAbuse, https://www.paypalobjects.com/webstatic/ua/pdf/US/en_US/infringementreport.pdf)
Contact your web hosting service to have your website removed, as you are infringing their Terms of Service by using their server space for unlawful purposes.
Contact INTERPOL, as your company is committing an international crime by trafficking in illicit goods and counterfeiting. (http://www.interpol.int/Crime-areas/Trafficking-in-illicit-goods-and-counterfeiting/Trafficking-in-illicit-goods-and-counterfeiting).
Wait, we're "committing an international crime by trafficking in illicit goods and counterfeiting" because we posted a story mocking your stupid DMCA takedown requests... and your response is to send an even stupider and more ridiculous takedown demand? Yeah, that's not very smart. You're also lying, which may be an issue for you given that the DMCA forbids making false statements in DMCA takedowns.
And, just to be clear: we're not selling any stupid penis pumps, counterfeit or not. Did you miss that simple fact? I imagine Interpol might wonder why you're wasting their time making false reports.
Next up, the email lists out the various trademarks in different jurisdictions that the company has -- all of which is totally meaningless and unimportant because writing about your company is not violating your trademark in any way, shape or form. That's not how trademark works.
And then the closing:
Andromedical S.L has not signed a valid license contract in this seller’s favor to use the trademarks of Andropenis® or its copyright. The names referred and its images pertain, only and exclusively, to Andromedical S.L.
I have a good faith belief that use of the copyrighted materials described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law.
I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Eduardo Gomez de Diego
Yeah, that's great. Except, again, we're not selling anything, and we're not violating your trademark or your copyright. Your "good faith belief" is either not in good faith at all, or just wrong. Our use is clearly authorized by the law.
Finally, note that the opening of the email threat said that it was coming from "the Legal Department of Andromedical." So, that would imply that our friend Eduardo Gomez de Diego is a lawyer, no? So, then, why does he show up as a doctor stumping for an Andropenis penis pump? And the author of the "study" that claims that Andromedical's penis pump actually "works"?
In summary, I'd argue that Eduardo's legal claims are about as strong as his scientific and medical claims.
We've written a few times now (including just recently) about the Spanish firm Ares Rights, whose sole purpose and job in this world appears to be to abuse any and all systems to take down content to try to hide content that either Ares Rights or its clients dislike. Mainly, the takedowns seem to focus on the interests of what appears to be its main client, the government of Ecuador, and its main tool is totally bogus DMCA notices, that too many companies follow without looking at the details.
However, Ares Rights also has a history of abusing takedowns to try to hide negative information about itself. And apparently, it will abuse other tools as well, such as Twitter's policy on shutting down accounts for abuse.
Daniel Nazer is a lawyer for EFF (focusing mostly on patent issues). Last week, he found out that his Twitter account had been shut down. Eventually, he was allowed back into the account, but was told he could only reopen the account if he agreed to delete a tweet. Which tweet? One in which he referenced Ares Rights and linked to an email exchange he'd had with the head of Ares Rights, Jon Palma. As background, Nazer explained how, back in 2014, he had tweeted negatively about Ares Rights, (accurately) calling what the company engages in as "copyfraud." Palma, apparently misunderstood Nazer's tweet, thinking that it was in support of Ares Rights, and emailed Daniel asking for business advice. Nazer posted the content of that email:
There are all sorts of levels of ridiculousness here, from Palma misunderstanding Nazer's tweet, to the fact that he filed an abuse complaint with Twitter, to Twitter's decision to disable Nazer's account. Someone from Twitter who saw me discussing this (on Twitter, naturally), reached out to point to Twitter's policy on private information posted on Twitter. This is the policy that's supposed to allow Twitter to shut down accounts of people doxxing someone, posting credit cards, harassing people, or posting revenge porn or whatnot. And it seems likely that the folks at Twitter would argue that Nazer's original screenshot of the email revealed Palma's "non-public" email address. If that's the case, even then it seems like a stretch. In context, it's clearly not for the sake of "doxxing" or harassing Palma, and it's unlikely that anyone actually looked at the original screenshot and decided to angrily email Palma.
Twitter claims that it "may consider the context and nature of the information posted," but it's hard to see how that was the case this time. In the end, things worked out, and Ares Rights, yet again, looks like a horrible, censorious, thin-skinned bully. But it's a bit disappointing that Twitter was willing to help the company along in that endeavor.
World Intellectual Property Review (WIPR) is reporting that the European Patent Office, EPO, has threatened Roy Schestowitz with a defamation lawsuit over a blog post he did. Schestowitz writes the Techrights blog, which I personally think can go overboard with some of its stories at times. However, to argue that his stories are defamation, especially by a government agency, is crazy. Back in October, Schetowitz had a story claiming that the EPO was prioritizing patent applications from large companies like Microsoft to "foster a better esprit de service." I actually don't think the program described by the EPO actually sounds that crazy, and the EPO's response isn't that crazy either -- it's just about more efficiently handling certain patent applications to keep the office from getting swamped. Indeed, it does seem like Schestowitz may have overreacted with his interpretation of the memo. But, misinterpreting something is hardly defamation.
In fact, to argue that Schestowitz's post is defamatory is crazy. Threatening Schestowitz with a defamation claim is much crazier and dangerous than even Schestowitz's own interpretation of the EPO's memo. If you're working for a government agency, such as the EPO, you have to be willing to accept some amount of criticism, even if you disagree with it. To claim it's defamation and to threaten a lawsuit is really, really screwed up. Frankly, this calls into question what the EPO is focused on much more than any claims of favoring large companies. Also bizarre is the fact that WIPR edited its own story to remove any mention of what Schestowitz's original blog posts were about in the first place. They had originally included a sentence briefly describing the original Techrights blog post that got the EPO upset, but then deleted that part.
The EPO has been coming under a fair bit of criticism lately, and the entire organization appears to be astoundingly thin-skinned. A few months ago, the office apparently blocked access to Techrights altogether from within its network. That seems like a pretty strange move in the first place. Florian Mueller (and, yes, I know that many people here don't trust Mueller, but...) has pointed out how absolutely ridiculous the EPO can be about just about anything related to how it works:
The European Patent Office is the last dictatorship on Central European soil. Local police cannot allowed to enter the EPO's facilities without an invitation from the president. National court rulings cannot be enforced; compliance is voluntary. Employees and visitors are subjected to covert surveillance. And if employees are fired (or "suspended"), which just happened to several staff representative, they won't get their day in court for about ten years.
The EPO's leaders have a rather selective attitude toward the law. When it's about their wrongdoings, they want their organization to be a lawless, autocratic island that disrespects human rights. But when the rules of the world around the EPO come in handy, the leadership of the EPO tries to leverage them against those who dare to criticize it.
I'm having trouble thinking of any other governmental agency that has ever threatened a public critic with defamation. Basic concepts around free speech suggest that the EPO should suck it up. If it disagrees with Schestowitz's interpretation of what it's doing, then it can come out and explain its side of the story. Threatening him with defamation actually only makes me think that perhaps his interpretation hits closer to home than I originally believed.