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.
Last year, Dr. Edward Tobinick sued Yale physician Steven Novella over a blog post Novella had written that questioned and criticized Tobinick's off-label use of immune-suppressing drugs to treat… Alzheimer's patients. Here's a short quote from the post at the center of the lawsuit:
The claims of Tobinick, however, are not in the gray area—they are leaps and bounds ahead of the evidence. Further, the conditions he claims to treat are not clearly immune-mediated diseases. It’s one thing to use an immune-suppressing drug to treat a disease that is known to be caused by immune activity, and probably the kind of immune activity suppressed by the drug.
Tobinick, however, is claiming that a wide range of neurological conditions not known to be immune mediated are treated by a specific immunosuppressant.
Tobinick first demanded Novella take the post down. When Novella refused, Tobinick sued him and Yale University. Tobinick didn't allege defamation, as one would expect. (At least, not originally, allegations of libel were added to an amended complaint.) Instead, Tobinick claimed Novella's post was "false advertising" and actionable under trademark law.
There are very few cases where plaintiffs have been successful misusing intellectual property laws to shut down critics. This one is no exception. Back in June, the court granted Novella's anti-SLAPP motion, striking Tobinick's motions for unfair competition, trade libel and libel per se. All that was left unaddressed was Tobinick's Lanham Act claim.
Now, the court has handed a victory to Novella, granting his motion for summary judgment and ordering the case closed. The court finds no merit to Tobinick's argument that Novella's critical blog posts were "commercial speech" and therefore actionable under the Lanham Act.
[T]he Court finds that the speech at issue here—that is, the First and Second Articles, published on www.sciencebasedmedicine.org —is not commercial speech. The Articles proposed no commercial transaction, and consequently do not fall within the “core notion” of protected speech. See Bolger, 463 U.S. at 66. Furthermore, the Articles do not fall within the scope of the definition expounded in Central Hudson, “expression related solely to the economic interests of the speaker and its audience.” 447 U.S. at 561. Both articles clearly state their intent to raise public awareness about issues pertaining to Plaintiffs’ treatments.
Thus, the First and Second Articles can only potentially qualify as commercial speech under Bolger. Yet the Articles differ from the pamphlets at issue in Bolger in a number of ways. First, the Articles are not conceded to be advertisements. Second, the only products referenced in the First Article are Plaintiffs’ treatments. To the extent that the Second Article mentions Defendant Novella’s practice, it is in direct response to the instant litigation as opposed to an independent plug for that practice.
The main thrust of Tobinick's Lanham Act argument was that because Novella made money indirectly from the website, it was commercial speech. The court doesn't care for this argument either, and points out that even certain commercial speech is still protected under the First Amendment and not subject to Lanham Act claims.
The third and final factor from Bolger, whether there was an “economic motivation” for the speech, is the primary basis for Plaintiffs’ opposition to summary judgment. Essentially, Plaintiffs contend that the Articles are commercial speech because SGU Productions, a for-profit company controlled by Defendant Novella, earns money by selling advertisements on its website (skepticsguide.net), advertisements in a podcast, memberships, and goods such as t-shirts…
Thus, even if Defendant Novella directly earns money from an organization sponsoring or producing the speech, this alone would not make the speech commercial. Furthermore, the specific evidence elicited in this case regarding SGU does not point to a strong economic motivation for the speech. Although Plaintiffs argue that “[t]he flow of money to Novella . . . is significant, as [Jay] Novella testified to over $200,000 last year,” Jay Novella also testified that, despite this profit, SGU “made no profit after expenses” because “we reinvest the vast majority of the money back into the company when we have a positive cash flow.”
The Court therefore finds that Defendant Novella’s speech in the First and Second Articles does not qualify as commercial speech, such that the Articles can form the basis of a Lanham Act claim.
Once again, we see a plaintiff learning the hard (and expensive) way that speech that may harm your commercial interests isn't automatically a.) defamatory or b.) a violation of intellectual property laws. Of course, many litigants already know this. They're apparently just hoping the courts don't.
With the granting of the anti-SLAPP motion, it looks like Tobinick will be paying the costs of defending against his bogus lawsuit. But it's not as though people looking to censor critics will be any less willing to engage in Hail Mary-esque lawsuits. Many defendants simply aren't willing to put themselves through the financial and mental pain and suffering that accompanies litigation. Because of this, this string of IP law-abusing legal failures won't prevent similarly bogus attempts from being made in the future.
As you've probably already heard, last week former tennis star James Blake was blitzed by an NYPD plain clothes officer in front of his hotel, tackled to the ground, and left cuffed there bruised and cut. The officer in question thought he was brutalizing someone who had committed credit card fraud. In itself, this would be quite a problem, as credit card fraud isn't the kind of crime that typically results in an NYPD beatdown. Except that James Blake is black. He's also, as it turns out, not even the suspect this officer was supposed to be looking for. He just happened to fit the description. The NYPD has since apologized to him, an apology that one would hope was met with narrowed eyes and a defiant chin.
But you'll never guess who isn't apologizing. Actually, you probably will, because it's NYPD Patrolemen's Benevolent (hah!) Association President Patrick Lynch, who penned a letter to the media covering the story. Let's just see how much we can get through this before we stop pretending like we're dealing with a sane person, shall we?
AN OPEN LETTER TO ALL OF THOSE INCLINED TO JUMP TO CONCLUSIONS
And we're off to a bad start. Jumping to conclusions isn't the best description when there is public video of Blake getting tackled and the NYPD has already apologized. Oh well, on to the real meat of this gem.
To all arm-chair judges:
If you have never struggled with someone who is resisting arrest or who pulled a gun or knife on you when you approached them for breaking a law, then you are not qualified to judge the actions of police officers putting themselves in harm's way for the public good.
And just like that, we're done. I've embedded the rest of the letter below the post in case you want to read the whole thing, but you really probably shouldn't. There isn't much point in continuing to read something built on a premise that rests entirely on the logical fallacy of argument from authority. The very idea that anyone who hasn't arrested an armed resistor ought be precluded from judging those who have is provably false. After all, there is no test of would-be judges that includes a screening to make sure they've experienced this. And they're literally judges. Beyond the courts, the press has long been investigators into police misconduct, highlighting abuses. It's their job, after all. And the public falls under the purview of our laws, which just so happen to apply to police as well. And those laws are built by the public's representatives, so you best believe that the public has every right to judge public servants against those laws.
But according to Lynch's amazingly stupid letter, this all goes out the window when it comes to the police. They have earned the benefit of the doubt. Why? Because danger, yo.
That is why no one should ever jump to an uninformed conclusion based upon a few seconds of video. Let all of the facts lead where they will, but police officers have earned the benefit of the doubt because of the dangers we routinely face.
Dangers like tennis players standing idly outside a hotel lobby? Do tell!
In any case, commentators appear to not be taking Lynch's letter to heart. You really should read all of Ken Womble's open letter in response to Lynch's, but since I only made it through a couple of grafs of Lynch's, we'll keep this fair and include only the first paragraph of Womble's response.
Sept. 16, 2015 (Mimesis Law) — Dear Pat,
I am in receipt of your letter entitled “An Open Letter To All Of Those Inclined To Jump To Conclusions.” First, allow me begin by making a point that I think is vitally important. Fuck you.
Miami Heat part-owner Ranaan Katz will be parting with a bit of his fortune because he is a censorious blowhard who doesn't know when to quit.
Back in 2012, Katz got all sensitive about a blog that posted some court documents he didn't want published. To add imagined insult to imagined injury, the blog also posted a less-than-flattering photo of Katz. This one, to be exact:
Katz tried a "fresh" approach -- one that has been used by others with similar censorious motivations. He went the copyright infringement route. He purchased the copyright to the unflattering picture and filed an infringement lawsuit against the blogger (and Google, which hosted the blog). He also threatened to sue the blogger's lawyers, because Ranaan Katz has yet to discover a hole he couldn't make bigger.
And, for some ungodly reason, he nearly won. His barefaced effort to use copyright protection as a blunt "shut the fuck up" weapon was humored by a lower court, which issued a ridiculously broad injunction against the blogger. But upon later review, the district court decided the use of the photo was clearly fair use.
Plaintiff holds the copyright to an unflattering photograph of himself which Defendant published as part of highly critical blog articles she wrote about Plaintiff. Plaintiff purchased the photograph only after he realized Defendant’s use of it in her blog. Plaintiff’s purchase of the photograph was, from his perspective, to “stop this atrocity” of Defendant using the picture in her critical blog.
As explained by Magistrate Judge Chris M. McAliley in her Report and Recommendation recommending granting summary judgment in favor of Defendant:
Plaintiff is a businessman who testified that he considers the Photo “ugly” and “candid and embarrassing.” He does not claim to be a celebrity and does not claim Magriso’s (the original copyright holder’s) market as his own. Not surprisingly, Plaintiff has not tried to sell or license the Photo to anyone. Rather, Plaintiff testified that he obtained the Assignment of Copyright “[b]ecause I wanted to stop this atrocity.” (Plaintiff views the transfer of copyright as “a correction - correction of a mistake that happened.”). He has not used the Photo other than in this litigation, and has done so here to prevent its publication.
As Judge McAliley recognized in her Report and Recommendation, no reasonable fact finder could find for the Defendant. Plaintiff was privy to all the facts which led to summary judgment in Defendant’s favor from the outset of the litigation. He was fully aware when he filed the suit that he had no intent to profit from his copyright, nor was he a victim of any economic damages from Defendant’s use. The fact that the Court found three out of four factors weighed in favor of Defendant and the other was neutral clearly indicates that Plaintiff’s attempts to stymie Defendant’s speech are precisely what Section 107 is designed to protect against.
Even better, the court calls him out for using copyright as a weapon.
Instead of using the law for its intended purposes of fostering ideas and expression, Plaintiff obtained the photograph’s copyright solely for the purpose of suppressing Defendant’s free speech. Unsurprisingly, Plaintiff argues that protecting his rights under the Copyright Act was his sole motivation for filing this suit. [D.E. 187 at 13]. That assertion is rather dubious. Plaintiff has characterized this action as “just one battle” in a “malicious war.” [D.E. 187 at 1]. While Plaintiff might view it necessary to remove his unflattering picture to “stop this atrocity” [D.E. 148 at 23], he may not resort to abusive methods to do so.
Copyright as censorship. Only this time, someone's actually out a fair bit of cash for abusing the system. That, in and of itself, is an anomaly.
Remember Adam Miller? The so-called, self-professed "faith healer" sued an online critic, Stephanie Guttormson, earlier this year. It was a clear SLAPP lawsuit. Guttormson had taken one of Miller's laughable promotional videos and added some commentary mocking it. You can see it here:
That video had less than 1,500 views at the time Guttormson was sued. It now has about 65,000. The main claim in the lawsuit was copyright infringement, which is laughable. It's clearly fair use. The video was used in a non-commercial manner for commentary and criticism. It's easily fair use, and the lawsuit was clearly designed to silence public comment. The lawsuit also made some ridiculous claims, such as claiming that calling Miller's nonsense "faith-based bullshit" is "defamatory" because "Mr. Miller's work does not require a client to hold any faith." Yeah. Let that one sink in for a moment.
Either way, just days after this started getting attention, it appears that Miller and his lawyer realized that this was going to end badly and let the matter drop. As we noted at the time, he dismissed the lawsuit without prejudice, meaning that he could potentially file it again in the future. We wondered if that opened up an opportunity for Guttmorson to file for a declaratory judgment, but she announced that she was just going to let the matter drop.
Well... Adam Miller is back and he's insisting that he's going to reopen the lawsuit against Guttormson. Oh, and not only that, he's also launched a new site, FaithWarrior.org where he insists that he's declaring "war" on "anarchy" and a variety of other things, including communism (he insists his critics are all communists), "faith bashing," "cyberbullying," "online harassment" and more. I'm almost wondering if he's signed up Charles Carreon as his lawyer. Carreon similarly declared war on his online critics, after they mocked him for his own SLAPP antics, and he shows up every once in a while to randomly attack those who called him out for his censorship attempts.
Miller's own personal website has been redone -- though parts of it mentioned in the article above appear to have been taken down and replaced with a "coming soon" promotion for a book (which makes it look like Miller thinks all this negative publicity may help him sell books) and the following almost incomprehensible text:
The truth always comes out. Regardless of how many idiotic minds shout in the streets. Faith will prevail and communism shall not rule. And you thought that this was about the healing work... this was just a bait and you have taken it. " Hook. Line. And Sinker. " Every one of you will be exposed. :)
For a "faith healer" he sure seems pretty angry. It starts out "Hey, Guttormson, ASSHOLE!" The rest of it is also somewhat incomprehensible. After some weird mention of Deepak Chopra (huh?), he says:
So here it is. Just because you have a computer, does not mean that you people are something new. Because 80 years ago, in Russia you same people took over the churches and killed all the priests. That's who you people are and I'm going to take you all down.
I have no idea what he thinks he means by that, but then there's his second video where he insists that he's reopening the copyright case against Guttormson and explains how he's going to war against his critics.
In it, he declares that athiests are "communists." He claims "they're backed by the Communist rule. They're put as cells around the country in order to disrupt any kind of belief system." Considering that Miller himself argued that anyone calling his nonsense "faith-based bullshit" was defamatory, you'd think he'd be more careful about making statements of facts about his critics that are laughable.
Then he insists that the lawsuit is back on, though it's not clear he understands the lawsuit he himself is supposedly filing.
My lawsuit is for copyright infringement only.... I am suing Guttormson because he has made ridiculous statements that are completely untrue about a work he knows nothing about. I am now going to reopen that case. We're going to drag this individual into Arizona because he is in Maryland, and we're going to continue the lawsuit. It's very important that everyone follows this lawsuit and understands what I'm going to do to this individual. Because this has everything to do with faith. You see these people are set in this country and they are completely brainwashed again as communist cells and they want to bring communism to America and make sure that we have no freedom of any kind of rights whatsoever.
So much to parse and so little time. If the lawsuit is for "copyright infringement only" as Miller claims, then why does he say it's about "ridiculous statements that are completely untrue"? That's not about copyright at all. That's only true about defamation. And, again, nothing in the original appeared to be either defamatory or infringing. Also, directly saying that you intend to drag someone across the country, and saying it's because you believe she made statements you don't like kind of makes it that much more clear that this is nothing other than a clear SLAPP suit.
Unfortunately, while both Arizona and Maryland have anti-SLAPP laws, they are both super narrowly targeted, only focusing on lawsuits that are about speech regarding government efforts. Yet another reminder of why we need (desperately) a federal anti-SLAPP law.
Also, it seems ridiculous that Miller is claiming that it's Guttormson and others critics wanting to make sure "we have no freedom of any kind of rights" (whatever that means), when it looks like he is seeking to suppress speech through questionable lawsuits. So, again, he's claiming (maybe) defamation while defaming people, arguing that those he's looking to silence are trying to take away all "freedom of rights." So that's two out of the three things that he's claiming others are doing to him that it appears he may actually be trying to do to others. What about the third? Remember how he claimed this is "about copyright infringement only"? Well, the third video that Miller has uploaded to his new YouTube account is a clip from a documentary on the Soviet Union. That seems like it may be copyright infringement, no?
Again, it seems like there's a decent chance Miller is trying to pull a reverse Streisand Effect here. Deliberately picking on those who mocked him in the past, thinking that it will apparently help promote his new book. And, as he says himself, "this was just bait and you have taken it." I doubt it's going to help sell many copies of the book though. Either way, people filing bullshit censorious lawsuits deserve to be called out for doing so.
A month ago, we wrote about actor James Woods bizarrely suing a trollish Twitter user who had been mocking Woods on the site. The whole lawsuit seemed ridiculous. The specific tweet that sent Woods over the edge was this anonymous user (who went by the name "Abe List") saying "cocaine addict James Woods still sniffing and spouting." Soon after our post on the subject, Ken "Popehat" White posted an even better takedown entitled James Woods Punches the Muppet. That post has now been updated with a brief note that White has now been retained to defend the anonymous Twitter user. And, if that gets you excited for what to expect in the legal filings, well, you don't have wait. As first reported by Eriq Gardner at the Hollywood Reporter, White has filed the John Doe's opposition to Woods' attempt to unmask the guy. And it's worth reading.
Problem number one with Woods' suit is laid out right at the beginning of the filing, which is that Woods himself has a habit of accusing others of using illegal drugs as well, just as Abe List did:
The filing shows other tweets from Woods that have similar words that Woods complained about Abe List using, such as "clown" and "scum." As the filing notes, it appears Woods thinks that he can use those insults towards others, but if anyone uses them towards him, it's somehow defamatory.
Plaintiff, an internationally known actor, is active on Twitter, a social media platform.
There he is known for engaging in rough-and-tumble political debate. Plaintiff routinely
employs insults like “clown” and “scum,” and even accuses others of drug use as a rhetorical
But Plaintiff apparently believes that while he can say that sort of thing to others,
others cannot say it to him. He has sued Mr. Doe for a derisive tweet referring to him as
“cocaine addict James Woods still sniffing and spouting” in the course of political back-andforth.... He also complains, at length, that Mr. Doe has called him things
like a “clown” and “scum.” Naturally, Plaintiff has himself called others “clown” or “scum”
The filing, quite reasonably, notes that these kinds of hyperbolic claims cannot be seen as defamatory, and since there's no legitimate claim here, there is no reason to do expedited discovery or to unmask Abe List, who is entitled to have his identity protected under the First Amendment.
Oh, and, not surprisingly, White will be filing an anti-SLAPP motion shortly, which may mean that Woods is going to have to pay for this mess that he caused.
The filing also notes that while Woods sent a subpoena to Twitter to try to seek Abe List's identity, the company turned it down as deficient. The full two page letter is in the filing below as Exhibit B, but a quick snippet on the First Amendment concerns:
Meanwhile, Woods has already filed a response in which he is still seeking to uncover the name of Abe List, and which repeats more ridiculous claims about the whole thing, starting off with the simply false claim that the original "cocaine addict" tweet was likely seen by "hundreds of thousands" of Woods' followers. That's wrong. They would only see if they followed both Woods and the Abe List account, which very few did.
The filing, somewhat hilariously, claims that calling someone "a joke," "ridiculous," "scum" and "clown-boy" are not protected by the First Amendment. Which makes me wonder what law school Woods' lawyers went to. Because that's just wrong:
AL's outrageous claim appears to be the culmination of a mlaicious on-line campaign by AL to discredit and damage Woods' reputation, a campaign which began as early as December 2014. In the past, AL has referred to Woods with such derogatory terms as a "joke," "ridiculous," "scum" and "clown-boy." ... Although AL's rantings against Woods began with childish name calling, it has escalated beyond the protections of free speech, i.e., the First Amendment does not permit anyone to falsely represent to the public that another person is addicted to an illegal narcotic.
Um... but Woods himself did exactly that (see above). It's standard hyperbolic speech, which is clearly not defamatory especially when mocking a public figure like Woods who has a history of using the same sort of hyperbolic insults on Twitter. Even more ridiculously, Woods' lawyers claim that by saying that the statement was a joke, that's Abe List admitting that he knew it was a false statement. I can't see that argument flying. I can see it backfiring big time once the anti-SLAPP motion is made.
So, what about those similar tweets made by Woods himself? His lawyers tell the court to ignore those piddly things.
... to the extent AL or TG attempt to argue that the Court should consider other statements on their Twitter accounts, or any previous tweets by Mr. Woods, the argument is a red herring. First, there is no reason any of Mr. Woods' followers, all of whom were exposed to the defamatory statements, would even bother to investigate the speakers and/or their Twitter sites to determine if they were reliable sources. As to Mr. Woods, we are not aware of any false statements of fact made by Mr. Woods and his sometimes sharp commentary on political matters is irrelevant to the allegations here.
Except, uh, again, Woods suggested someone smoked crack, just like Abe List joked that Woods was a cocaine addict. And, again, Woods and his lawyers are just wrong that all of Woods' followers would have seen Abe Lists' tweets. They're just factually wrong.
You never know how courts will rule in any particular case, no matter how ridiculous, but I have a hard time seeing how Woods gets out of this without having to pay two sets of lawyers -- his own and Ken White -- for filing a clearly bogus defamation case designed to shut up (and identify) an anonymous Twitter critic. No matter what, James Woods may not be a cocaine addict, but he has made it clear that he can dish it out but can't take it back when people make fun of him. What a clown.
You may remember the bizarre story we had a couple of months ago of how the city of Inglewood, California was suing a critic for copyright infringement. The critic, Joseph Teixeira, does not like Inglewood mayor James Butts. So he takes video (that the city posted online itself) of city council meetings, and adds commentary mocking the mayor. And that, the city claims, is copyright infringement. Not only that, but Inglewood spent $50,000 on a big time lawyer to try to silence Teixeira by abusing copyright law.
As we explained, the whole thing was bullshit on multiple levels. First, it's the government trying to silence a critic. That's a pretty big First Amendment no-no. Second, there's no legitimate copyright claim in the videos. Third, even if there were a copyright claim in the videos (and there's not), this would easily be fair use. And, of course, then the city made it even worse -- claiming that Teixeira had altered the videos after the lawsuit to protect himself. The court asked the city to prove it, and not surprisingly the city could not. Because it wasn't true.
Adam Steinbaugh, now the "new guy" at Popehat, has all the details of the beatdown the court gave the city, which you can also read directly here. Let's start with the copyright issue. Turns out, as pretty much everyone knew, you can't claim copyright over your city council meetings:
The only published authority on the question of the ability of California public
entities to assert copyright over works they produce holds that the City may not assert a
copyright interest in the City Council Videos. In County of Santa Clara v. Superior
Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009), the California Court of
Appeal addressed the county’s denial of a request for a geographic information system
base map it had created. The court carefully considered California law, including the
CPRA and the state’s policies towards openness and accessibility of the writing of
public officials and agencies. Id. at 1320 (citing Cal. Const. art. 1 § 3(b)(1) (the state
constitution explicitly recognizes the “right of access to information concerning the
conduct of the people's business” and to provide that “the writings of public officials
and agencies shall be open to public scrutiny.”) The court evaluated the statutory
language of the CPRA and held in part that in the absence of “an affirmative grant of
authority to obtain and hold copyrights” a California public entity may not do so.
The court is so unimpressed with Inglewood's attempt to get around all of this that it's not even worth discussing what their reasons were. They were bad, and the city should feel bad (that it's wasting taxpayer dollars on this kind of crap).
The court then notes that, even if the copyright was valid, it still would be fair use. The court doesn't even need to go this far, having correctly determined the lack of copyright, but decides to do so anyway, just in case the city is thinking of appealing.
A review of the videos is sufficient for the Court to rule that the Teixeira Videos
are protected by the fair use doctrine as a matter of law. The Teixeira Videos use brief
portions of the larger works in order to comment on, and criticize the political activities
of the City Council and its members. He uses carefully chosen portions specifically for
the purposes of exercising his First Amendment rights, and in doing so, substantially
transforms the purpose and content of the City Council Videos.
The city's response is laughable. It's almost as if whoever wrote the argument for the city has never come across fair use before or, you know, being honest in court.
The City’s contention that Teixeira is “simply republishing untransformed,
copies of the Copyrighted works, and free-riding on the City’s expenses” is plainly
incorrect on even the most cursory review of the Teixeira videos. The City’s claim that
“[t]he facts alleged a complete lack of transformativeness” is also irrelevant given the
reference by the Complaint to the videos themselves.
Or how about this time, where they claim he's using too much of the videos (even though it's clear he only uses a small portion of them):
The City argues that Teixeira fails to meet his supposed burden of showing that
it is “essential” to make the copies for his purpose of commenting on it. The City
contends that each topic area of the City Council meetings is “an independent and
entire work” and Teixeira cannot show why it is necessary to copy these “entire”
works. However, a review of the videos makes it clear that Teixeira has copied only
the parts of the City Council Videos that serve his purpose of making comment on
them, or criticizing very particular statements by Butts. This use of another’s material
has been frequently recognized as protected fair use.... The City’s exceptionally narrow view of an “entire” work is
without merit and contrary to the purpose of the fair use doctrine, which permits the
use of reasonable quantities of a work for the purpose of criticism and comment.
Oh, and then there's the bit where the city claims that Teixeira's video will harm "the market" for its videos. The court sees right through that. Not only is that a ridiculous argument (I mean, really, what's "the market" for the city of Inglewood's city council meetings?), it's also true that the city is barred by law from making money off of those videos.
The City argues that the factor favors its position because Teixeira’s copying
denies the City of the opportunity to “recoup its expenses” and “deprives [the City] of
potential revenue.” This argument is without merit and flatly contradicted by the
California law that governs the City’s creation and use of the City Council Videos.
California law prevents public agencies from charging the public anything more
than the “direct costs of duplication” when providing public records. Cal. Gov. Code
the Legislature “specified . . . that the sole charge should be that for duplication” and
specifically for “the direct cost of duplication” and not for “indirect” costs of
The City therefore may only collect fees to reimburse for the direct costs of
providing copies of any record it creates, including the City Council Videos. It is
specifically barred by law from charging any fee to recoup the costs of original
production. And it is certainly not permitted to use the City Council Videos to generate
any form of revenue. There can therefore be no commercial market for the City
Council Videos and no activity by Teixeira can deprive the City of any revenue.
And thus, the City of Inglewood has no legal leg to stand on, not that it ever did:
Having reviewed the accused videos, the Court determines that – even assuming
the City has any copyright interest to assert – they are clearly protected by the fair use
doctrine. Indeed, the Court can scarcely conceive of works that are more appropriately
protected by the fair use doctrine and § 107 than the Teixeira Videos. He is engaged in
core First Amendment speech commenting on political affairs and matters of public
concern. To do so, he has taken carefully selected and short portions of significantly
longer works, and embellished them with commentary and political criticism through
music, his voice, and written subtitles. Even if California law allowed the City to
assert a copyright claim, Teixeira’s activities plainly fall within the protections of fair
The City accuses Teixeira of wanting “to criticize the City without doing his
own work” by “posting substantially all of the full [City Council Videos] with [his]
comments posted on top of them.” .... Even if the City’s characterization of
the Teixeira Videos were accurate, fair use would allow such use for the purpose of
All of this should make you wonder how the case got this far at all. How did the lawyer, to whom the city agreed to pay $50,000, not tell them that this would end badly? Also, what kind of city sues its critics, first of all, and then completely abuses copyright law to do so? As the LA Times noted about this case:
There's something fundamentally outrageous about using tax dollars to sue a taxpayer over the use of a public record that taxpayers paid to create.
from the bigger-men-than-this...-are-employed-elsewhere dept
On July 1st, the Spanish government enacted a set of laws designed to keep disruption within its borders to a minimum. In addition to making dissent illegal (criminal acts now include "public disruption" and "unauthorized protests"), Spanish legislators decided the nation's law enforcement officers should be above reproach. This doesn't mean Spanish cops will be behaving better. It just means the public will no longer be able to criticize them.
In his July 22 Facebook comment, Mr Díaz criticised the use of public resources on a brand new police station in the town of Güímar, stating that the local force was a “pack of slackers”. But local police officers wasted no time in reacting, ringing Mr Díaz’s doorbell six hours later to present him with the notification of a fine which will be set at between €100 and €600.
It appears the "slackers" in Eduardo Diaz's town can be proactive if properly motivated. With a fine approaching €100 a letter at the top end, the police force should soon feel properly insulated from the public's negative Facebook comments. Over here in the US, this would be protected free speech. In Spain, it's a criminal act and -- depending on how the local judge is feeling -- could net disgruntled commenters €600,000 for assaulting police officers with words.
I'm not sure how police officers in general feel about this new law, which also makes "unauthorized" photography of officers subject to similar fines. I would like to think they're not too happy with this and would rather earn respect rather than exist in an enforced criticism-free vacuum. But maybe not. Maybe these cops -- the ones that showed up all too quickly to serve Diaz with a summons -- enjoy a cowed populace. If so, they really have no business working in the public sector.
In truly Orwellian fashion, the government is claiming that a police state is a more liberated state.
Defending the new law, the PP government has said that “demonstrations will become freer because they will be protected from violent elements”.
It's assumed similar statements defending Spain's gag law will be issued from the Ministry of Love in the coming months as Twitter users and cell phone-wielding photographers are picked up by local law enforcement and made to pay for their unwillingness to let police officers do their jobs both uncriticized and unobserved.
You would only really know this if you're a baseball fan, but Bob Costas went ahead and stepped in it recently while calling a Cubs vs. Cardinals game. You see, relief pitcher Pedro Strop came out to work from the bullpen and promptly crapped himself on the mound (not literally). This, of course, is only in good keeping with the Chicago Cubs tradition of sucking, but apparently Costas decided to go in pretty hard on Strop when the pitcher pointed at the sky as he exited the game.
Whoa. That's more than a little harsh relative to most MLB broadcasts and Costas heard about it from many internet sites and social media circles. Baseball fans tweeted, asking him what the deal was in delivering such a harsh line at a pitcher who simply had a rough outing. Websites, like Deadspin, offered up typically reasonable articles with equally reasonable headlines like "Holy shit, Bob Costas." As a result of all of this, Costas has said he would apologize for his remarks.
“We can be disingenuous about it if we want, if it suits our purposes, but we all know this: We live in an age of faux outrage, of disproportionate outrage. Everything is shocking, over the top. ‘He savaged Pedro Strop’ — I mean, come on, come on. Let’s get a handle on this,” Costas said. “I could have done better and I will apologize. But . . . that’s just Internet stuff. I’m going to take care of it the same way I would have taken care of it if it was 1986. And that’s going to be that.”
In addition to those comments, the link includes an audio clip from a Costas interview on WFAN, in which he laments the fact that the internet took notice of his national broadcast and decided they didn't care for it all that much. Costas hit the usual chords whenever someone from a traditional media outlet rails against the internet and social media: something something overreaction, something something fake outrage, something something we're still the real media. But my favorite line was:
"The mainstream, which can be criticized, we have our own shortcomings, but we're supposed to hue to a higher standard, both of ethics and of quality. The idea that in some desperate attempt to remain relevant, and to get more clicks, that we should dumb ourselves down to adopting the ethos of the mob, that's something that I'm not good with."
Look, I know I don't really count as valid, because I'm from the internet, but I have a suggestion: it might not be the best plan to trot out the sacred and storied tradition of journalistic ethics in the broadcast media in reaction to a story about you going nuclear on a reliever, such that you, yourself, felt the need to apologize. Those two things mashed together don't make any sense. Come on, Bob, it ain't the internet's fault you came of like a jerk.
What began as some squabbling over the definition of net neutrality in India has evolved into a global public relations shit show for Facebook. As we've been discussing, India's government has been trying to define net neutrality ahead of the creation of new neutrality rules. Consumers and content companies have been making it very clear they believe Facebook's Internet.org initiative violates net neutrality because it offers free, walled-garden access to only some Facebook approved content partners, instead of giving developing nations access to the entire Internet.
Internet.org partners began dropping out of the initiative, arguing they don't like any model where Facebook gets to decide which content is accessed for free -- and which content remains stuck outside of Internet.org. Facebook so far has responded by trying to claim that if you oppose Internet.org you're the one hurting the poor, because a walled garden is better than no Internet at all. Of course that's a false choice; Facebook could simply provide subsidized access to the entire Internet, but that wouldn't provide them with a coordinated leg-up in the developing nation ad markets of tomorrow.
So far Facebook's defense of Internet.org's zero rating of some content has only made criticism louder. A coalition of sixty-seven different digital activism groups from thirty-one different countries this week penned an open letter to Facebook on Facebook, arguing that Internet.org will actually hurt the poor by cordoning off meaningful parts of the actual Internet. The groups, many of which have been pushing for increased broadband deployment far longer than Facebook has, are quick to point out that Facebook's injection of itself between users and the Internet doesn't just raise net neutrality concerns, but privacy and security issues as well:
The censorship capability of Internet gateways is well established — some governments require ISPs to block access to sites or services. Facebook appears to be putting itself in a position whereby governments could apply pressure to block certain content, or even, if users must log in for access, block individual users. Facebook would find itself mediating the real surveillance and censorship threats to politically active users in restrictive environments. The company should not take on this added responsibility and risk by creating a single centralized checkpoint for the free flow of information.
Even if Facebook were able to figure out a way to support HTTPS proxying on feature phones, its position as Internet gatekeepers remains more broadly troublesome. By setting themselves up as gatekeepers for free access to (portions of) the global Internet, Facebook and its partners have issued an open invitation for governments and special interest groups to lobby, cajole or threaten them to withhold particular content from their service. In other words, Internet.org would be much easier to censor than a true global Internet.
Still, so far there's every indication that Facebook either doesn't understand, or doesn't want to understand, what critics are saying. The company recently posted a new myths versus facts release on the Internet.org site that somehow manages to talk over, under and around most of the points critics have been making. There's also this gem, in which Facebook actually denies that Internet.org has anything to do with making money:
MYTH: Facebook has launched Internet.org to help drive its own growth and revenue opportunities within developing countries.
FACT: There are no ads within the Facebook experience on Internet.org. If revenue were the goal, Facebook would have focused resources on markets where online advertising is already thriving."
This pretense on Facebook's part that Internet.org is solely about altruism is adorable, but it's not clear who, if anyone, actually believes that. To most, it's obvious Facebook wants in at the ground floor in order to dominate the ad markets of tomorrow, and what better way to do that than to position yourself as the walled-garden Compuserve of developing nations. Facebook could nip this entire problem in the bud in two simple steps. One, Facebook needs to stop acting like everyone is too stupid to see its real motives. And two, if Facebook is so very concerned about the poor, it should put its money where its mouth is and shift to a subsidized model that gets Facebook out of the way and provides access to the real Internet, free from obvious interference, censorship, privacy and neutrality concerns.