from the can-beings-of-light-cure-a-streisand? dept
A couple weeks ago, we wrote about faith healer Adam Miller's monumentally stupid and ridiculous SLAPP lawsuit against Stephanie Guttormson because she posted a video that was critical of a video Miller put together promoting his faith healing nonsense. We dissected how weak and laughable the lawsuit was -- and it's possible that Miller and his lawyer have now realized this, as they've dismissed the lawsuit, but without prejudice, meaning he could potentially file it again in the future. Given that (and the fact that Guttormson has raised a bunch of money in a crowdfunding campaign), I wonder if she'll now file for a declaratory judgment of non-infringement... Update: Guttormson notes that while she could go after him, she's going to let the matter drop.
Either way, Miller said he filed the lawsuit because he felt it was unfair that people were seeing this video that Guttormson put together:
When he filed the original lawsuit, it noted that the video had been viewed approximately 1,500 times since it first was posted back in December of last year. So, 1,500 views in a bit over four months. In the two weeks since the lawsuit was filed, it's now up to about 50,000 views. Nice work, Adam.
Separately, if you do a Google search on "adam miller healer" (as he likes to be known), it's full of stories about how he's suing Guttmorson and mocking his faith healing nonsense. One of these days people are going to understand the nature of the Streisand Effect, but apparently that day is not today.
I tend to be able to undestand when smaller companies, or perhaps younger companies, don't know and understand what the Streisand Effect is and how it works. You can write off this stuff sometimes to inexperience, even if you don't forgive the censorious actions themselves. But I think it's fair to say that Konami should know better than to think it could get away with disappearing a YouTube video it didn't like, yet that's exactly what Konami did.
Two weeks ago, George “Super Bunnyhop” Weidman published a YouTube video alleging he had information about the ongoing tension between Konami and Hideo Kojima. Now, it’s offline. (In case you missed the drama of the last few months, Kojima and Konami appear to be in the midst of a breakup, even as Kojima finishes work on Metal Gear Solid V: The Phantom Pain.)
Now, you can understand why Konami might not want a video about Metal Gear creator Kojima circulating just as the work on the latest iteration of the game series is due to be completed. After all, Kojima is well-known, very popular, and the news that there is some kind of rift between him and Konami might create doubt in customers' minds about just how much effort is going into this latest game. Add to that the notion that a public breakup with a popular game-designer can probably only hurt Konami's reputation and it's easy to get why the company would prefer all of this be buried.
And that's why taking down this video makes no sense. It not only gets a wider audience talking about the contents of the video, which have been put back up on another YouTube video, but it adds credibility to the claims made within it. After all, if this was all far-fetched speculative nonsense, Konami should have laughed the reports off, not used copyright to silence the video entirely. Use of game footage within the video is sparse at most, making all of this seem like a pure attempt at censorship using intellectual property, which, duh.
Based on Kotaku's reporting, it should be noted, this is almost certainly a manual takedown, as opposed to a Content ID grab.
There are two ways for a video to disappear from YouTube that doesn’t involve the creator deleting the video. One, there’s YouTube’s Content ID system, which scans videos for copyrighted material. Content ID, however, typically kicks in as soon as the video is uploaded, and wouldn’t normally bring a video down from the service two weeks later. It’s possible but unlikely, as all my interactions with Content ID have occurred very early in the process.
Two, a company purposely (and manually) issues a takedown notice, knowing YouTube will err on the side of rights holders, at least until the issue is resolved. During that time, the video is offline. Companies have used this tactic in the past to suppress videos they didn’t care for.
If the latter is the case with this takedown, it's quite a misunderstanding of the reaction to censorship of this kind in this day and age. Enjoy all the press that hated video is getting, Konami. You created it all, after all...
from the can-you-heal-not-understanding-the-law? dept
Oh boy. Today in Streisanding, we've got a lawsuit filed by Adam Miller, a faith healer, against Stephanie Guttormson, supposedly over claims of copyright infringement and defamation, though neither claim holds up under much scrutiny. Instead, this looks like a typical SLAPP suit, in which Miller is upset about a video that mocks him and his faith healing and decides to sue over it. Enter Stresiand Effect. The video is currently up, and the view count is rapidly escalating. At the time the lawsuit was filed (according to the lawsuit) it had about 1,500 views. Now it's much more:
There's nothing too surprising in the video, but it basically uses one of Miller's own promotional videos and intersperses some commentary and criticism. The lawsuit... is... well... a joke. First, he claims copyright infringement, though this is pretty obviously fair use. It's being used for criticism and commentary, and in order to make that work, it needs to show clips of the video. Miller's lawyer tries, weakly, to present a few arguments to try to get around fair use, including arguing that it's commercial use. Of course, as we keep repeating, commercial use does not mean that you can't have fair use. Tons of fair use involves commercial use. And, even given that, it's ridiculous to argue that this is "commercial use." The best the lawsuit can do is claim that the inclusion at the end of the video of a couple of "advertisements" makes it commercial. That, alone, probably isn't even enough to claim this is "commercial use," (which is generally more about selling the actual work or directly profiting). Plus, it's not even accurate. The "advertisements" aren't really advertisements at all, but rather a friendly acknowledgement of who sent her the video, with a link to that guy's own website and audio bookstore, with a mention that Guttormson appears on that guy's podcast every so often.
The lawsuit also claims too much of the original video was used, but there's little evidence to support that. Guttormson comments on basically every clip in the video, so it's hard to see how she's using "more of the original work than was necessary" as the lawsuit claims.
The lawsuit also alleges, as part of the copyright claim, that "Guttormson is liable for the actual harm caused to Mr. Miller as a result of Guttormson’s infringement and statutory damages." That's an interesting claim, but completely bullshit in the copyright context. The "actual harm" has to be over the copyright. Unless there was "actual harm" in Miller no longer being able to license/sell that video to a third party because they felt they could see it all for free through Guttormson's video (a crazy claim), then there's no actual harm. If the commentary in Guttormson's video, which mocks Miller's wacky faith healing nonsense, created "actual harm," well, that's not a copyright issue and is unrelated to any copyright claim.
The lawsuit also makes some claims about how the video itself was never actually released, but rather was password protected in Miller's wife's account. So the lawsuit alleges that Guttormson must have "hacked" into Eve Miller's account. In the video itself, however, as mentioned above, Guttormson notes that it was actually David Smalley who sent her the video. And while it's not entirely clear, from the comment threads under the video, it certainly sounds like Miller's video was most likely publicly available somewhere online. The evidence of "hacking" here seems really weak. And if there was hacking, the evidence that it was Guttormson is non-existent.
As for the defamation claims... there are only two specific things called out in the lawsuit. The first is this:
As just one example, Guttormson explains what happens at an appointment with Mr. Miller, “You will be fed faith-based bullshit.” This statement is false and defamatory; Mr. Miller’s work does not require a client to hold any faith, and he has worked with non-believers and atheists.
Um. Okay, it appears that Miller's lawyer is misrepresenting what "faith-based" means in this context. Guttormson isn't saying that those seeing Miller are expected to "have faith in a certain religion." She's saying that the treatment by Miller is not evidence based but is based on someone's blind "faith" in Miller being able to actually do something. And, besides, Miller's own words show that he's pitching a bunch of faith-based quackery. In the video clip, he himself explains the process, noting talking first about how he talks to people who come to them about things that happened in their childhood, like "traumas" that might explain their illnesses (really) and then says:
And then after we get through this, we put them on the table, and great holy spirit comes and breaks up dark cellular structure that creates any illness. Because I believe that illnesses are of a dark path.
That's like the definition of "faith-based" right there.
The other "defamation" claim is about the title of the video, which refers to Miller as a "con man." For the most part, courts don't consider phrases like that defamatory though (there are some exceptions, but it very much depends on context and if they're alleging a very specific thing, rather than a general insult). The link there is from Perle & Williams on Publishing Law and notes:
As Dean Prosser observed, "[A] certain amount of vulgar name-calling is tolerated on the theory that it will necessarily be understood to amount to nothing more." Thus, "communism" is too amorphous a characterization to be actionable, as is the term "grifter." The term "crook" has been held by one court to be a word of general disparagement rather than an allegation of specific criminal conduct, and thus was not slander; a restaurant critic's remark that a restaurateur was a "pig" and a television news editorial that referred to a chiropractor as a "quack" and a "cancer con artist" were held to be expressions of opinion; the words "those bastards" were held "mere epithets... as terms of abuse and opprobrium" and as such were not actionable for defamation; referring to a judge as "incompetent," "arrogant," "biased," and "one of the 10 worst judges in New York" was not held to be defamatory; calling a stockholder a "silly, stupid, senile bum" was not held to be slanderous; referring to Carl Sagan as a "butt-head astronomer" was held not libelous; and referring to a masonry contractor as a "shithead" was held not actionable....
In short, the likelihood that calling Miller a "con artist" is "defamation," let alone "defamation per se" as the lawsuit alleges, is... quite unlikely.
Even more to the point, this was a video that almost no one had seen. And now, because of this lawsuit, not only are tons more people checking it out, even more people will start investigating Adam Miller and the claims he makes about his "healing" services. Miller's website has gone down, but a quick look through the internet archive shows that it's chock-full of quackery (note to Miller's lawyer: that's not defamatory, so buzz off):
What this healing work is...
The Great and Holy Beings, such as Mother Mary, Jesus, Buddha, Quan Yin, Saint Germain, Archangel Michael and many others come into a person's body and transmute with light every single cell and raise the vibratory rate. In other words, diseases or injuries in the body have a very low, darkened vibration and when a Holy Being works with any person it changes the cellular structure permanently and the issue that is being worked on will never come back. This work is permanent. It is important to understand that Adam Miller is not a conduit, or psychic or related to any other work on the planet. This work is a result of Adam's death experience. Adam Miller would never claim to do this work himself. It is done by Holy Beings only.
So, uh, yeah. And he's the one claiming that "faith-based bullshit" is defamatory? Yikes.
Meanwhile, before filing the lawsuit, it appears that Miller posted another video announcing his response to the video above. In it he notes that a lawsuit is being prepared. But he also has a bunch of his "happy clients" give testimonials or complain about Guttormson, claiming that what she said was, like, really mean and "unprofessional." If Miller had merely posted his response including such testimonials, that would be perfectly fine. You deal with speech you dislike with more speech. But suing someone with bogus claims of defamation and copyright infringement? When you're spewing quackery? Not only is that going to flop in court, it's just going to lead a lot of people to examine what you're selling yourself...
A few years ago, we wrote about a terrible Georgia state court ruling against Matt Chan, the operator of Extortion Letter Info (ELI), a website/forum that has tracked copyright trolling for many years. There had been a number of discussions on the site about Linda Ellis, who is somewhat notorious for her trolling effort. Ellis wrote a poem called "The Dash" that gets reposted a lot online. Ellis and her lawyers then send threat letters, emphasizing the possible $150,000 in statutory damages (yet another example of how statutory damages aid in copyright trolling), before suggesting much lower (but still crazy high) dollar amounts to "settle." While some of the discussions on ELI were overly aggressive towards Ellis, it still seemed ridiculous that the court ordered Chan to remove all content relating to Ellis and to block any future mentions of her.
It seemed rather obvious that this was a pretty clear First Amendment violation, but the court felt that it was okay under Georgia's anti-stalking law. Georgia's Supreme Court has now unanimously reversed the lower court decision, saying that posting mean stuff about someone on a public website is not the same as stalking. The court focuses on the fact that the content posted to ELI wasn't sent directly to Ellis, but rather posted publicly in a place where she could (and, in fact, did) see it. It doesn't even get to the First Amendment issues, focusing just on whether or not this is stalking under Georgia's law:
The limited evidence in the record shows that Chan and others posted a
lot of commentary to his website about Ellis, but it fails for the most part to
show that the commentary was directed specifically to Ellis as opposed to the
public. As written, most of the posts appear to speak to the public, not to Ellis
in particular, even if they are about Ellis. And there is no evidence that Chan did
anything to cause these posts to be delivered to Ellis or otherwise brought to her
attention, notwithstanding that he may have reasonably anticipated that Ellis
might come across the posts, just as any member of the Internet-using public
might. The publication of commentary directed only to the public generally does
not amount to “contact,” as that term is used in OCGA § 16-5-90 (a) (1), and
most of the posts about Ellis quite clearly cannot form the basis for a finding
that Chan contacted Ellis.
To the extent that a few of the posts may come closer to “contact” —
including, for instance, the open letter to Ellis, which Chan may actually have
intended as a communication to Ellis — their publication still does not amount
to stalking. Even assuming for the sake of argument that Chan “contacted” Ellis
by the publication of any posts, the evidence fails to show that such contact was
“without [her] consent.” OCGA § 16-5-90 (a) (1). This is not a case in which
Chan sent a message to Ellis by electronic mail, linked commentary to her social
media account, or posted commentary on her website. To the contrary, the
commentary about which Ellis complains was posted on Chan’s website, and
Ellis learned of that commentary — that is, it arguably was communicated to her
— only as a result of her choice to discover the content of the website. The
evidence shows that Ellis visited the website herself — it appears, in fact, that
she registered herself as an authorized commentator on the website — and that
she had others visit the website and report back to her about the commentary
published there. Generally speaking, our stalking law forbids speech only to the
extent that it is directed to an unwilling listener, and even if Ellis did not like
what she heard, she cannot be fairly characterized as an unwilling listener. Ellis
failed to prove that Chan “contacted” her without her consent, and the trial court
erred when it concluded that Chan had stalked Ellis.
The only mention of the First Amendment comes in a footnote, in response to the part of the paragraph above, where the court notes that Ellis was not an "unwilling listener" as required under the law, noting that even so, if the speech is protected by the First Amendment, the stalking law wouldn't apply:
Even then, if the speech is protected by the First Amendment, it is excluded from the
scope of our stalking law. See OCGA § 16-5-92 (“The provisions of Code Sections 16-5-90
and 16-5-91 shall not apply to persons engaged in activities protected by the Constitution of the United States or of this state . . . .”).
But, by determining that the blog posts are not even stalking, the court avoided that question altogether. Either way, another important victory for free speech online, overturning a bad ruling that would have resulted in serious chilling effects for online speech.
On Friday, we had a post about some political comic strips that were posted to the Tumblr blog A Good Cartoon. Whoever is behind that blog (on the blog the name used is "rorus raz," and the post asks people to credit rorus raz, but on Twitter it's "Alan Smithee" which is a popular pseudonym) first posted a bunch of political cartoons by syndicated political cartoonists that demonstrated a near total lack of understanding about net neutrality, and then posted a followup post that took many of those political cartoons and replaced the bubble text with the simple statement "the cartoonist has no idea how net neutrality works." Well-known TV, book, podcast and internet personality John Hodgman then reblogged it on his site.
I first saw it on Hodgman's site and set it aside to write about it. When I got around to it late on Friday afternoon, I noticed, oddly, that the original on A Good Cartoon was now gone. There was no note or anything. It was just gone. However, Hodgman's version was still up, so I wrote about it and posted some (but not all) of the comics and added some additional commentary.
Over the weekend, however, the version on Hodgman's site also disappeared, and Twitter user Michael at BU alerted me to the news that over at A Good Cartoon a DMCA takedown notice had been posted. It appears that the copyright holder representing the cartoonist Chip Bok sent Tumblr a takedown. What's posted to the blog is what Tumblr sent to A Good Cartoon, and not the original takedown notice -- so it's not clear if it was sent via Bok himself or Creators Syndicate, which syndicates Bok's strips. Bizarrely, the notice that's posted to A Good Cartoon is not text and not a single image, but rather each word is a separate image. I have no idea why, but here's the transcribed note:
We've received a notification of alleged copyright infringement on one of your blogs. Here are the details of the content in question:
Description: The work is a copyrighted cartoon by artist Chip Bok. The caption of the cartoon was altered, but the copyright and signature remain, making it look like this work is by the artist, when it is not. You can find an original copy of the cartoon here: http://www.creators.com/editorialcartoons/chip-bok/31500.html
The content has since been removed, in accordance with U.S. law and Tumblr's own copyright policies.
At Tumblr, we implement a strict three-strike policy against copyright infringers. The notice we received counts as one strike against your account. If you receive three uncontested strikes within 18 months, your account will be terminated. You can contest this notification by following the instructions for a DMCA Counter-Notification found here: https://www.tumblr.com/policy/terms-of-service#dmca. A successful counter-notification will remove the strike against your account.
Please note that if your account is terminated for repeat copyright infringement, any new accounts you create will also be terminated.
Please let us know if you have any questions or concerns.
Tumblr Trust & Safety
It would appear that the cartoonist has no idea how fair use works (and the same may be true of Tumblr's "Trust & Safety" staff). Yes, fair use is often a judgment call, but it's difficult to see how this is not classic fair use. It was transformed (as the Tumblr letter even admits), and the transformation was done for the purpose of commentary and criticism of the original -- classic parody, which the courts have recognized as quintessential fair use. Finally, it was not done for commercial reasons and the impact on the market for the original is clearly none (other than the fact that it might make Chip Bok look foolish -- but the courts have been clear that it needs to be the copying, not the commentary that harms the market, and that's clearly not the case here -- i.e., the question is whether or not the copied work might substitute for the original in the market).
To better understand this, we'll post both versions here (which again is fair use, should Bok or his syndicate suddenly wish to try to play this stupid game on us as well). Here's the original:
The line in the bubble doesn't make any sense at all in the context of net neutrality, nor does the message on the TV itself. As we stated in our post on Friday, we already know that the big broadband providers have been the ones who have been deliberately slowing down access to Netflix, resulting in images like the following appearing on people's screens without net neutrality:
And, of course, once Netflix agreed to pay up, suddenly the big ISPs magically figured out how to plug in a few more connections and the speeds went back up:
Part of the point of the FCC's new rules is to prevent this sort of gaming by the big broadband players so that you won't have to see any delay messages at all when downloading a film. So, given all that, it's rather easy to conclude that Chip Bok has no idea how net neutrality works. And, given that, a fairly good way to parody Bok's ignorance is to post the following cartoon:
A Good Cartoon's response to the DMCA takedown is to note, "i'm astonished that chip bok believes people could confuse something he made with something that's actually funny and intelligent." Of course, being embarrassed about a parody does not make it infringing. It's still fair use. So, the most likely conclusion is that Chip Bok (and/or his syndicate) has no idea how fair use works.
Update: Over at his own site Bok is insisting this is not fair use and tossing out all sorts of nonsense about how he's older than everyone and thus understands these things better:
Really, you people should stop hacking my cartoons to make a point. It’s not “fair use”. It’s illegal. Think the FCC will help me out here? You’re destroying my intellectual property and inserting your own stupid message. Are you Chinese? Come up with something on your own.
This is especially funny since Bok's own site is called "Bokbluster" a clear play on the name of "Blockbuster." And, of course, that's a perfectly legitimate way to make use of something someone else created. But, Bok is so hypocritical that apparently he thinks that only he is allowed to build on another's work. Even worse, it appears he's racist, calling someone "Chinese" for criticizing him. That's incredible. And, on the copyright question, Bok is wrong. It is absolutely fair use, as described above. And his "intellectual property" is not being "destroyed" just because someone created a parody. That's not how it works. At all. His further comments show a complete lack of understanding about net neutrality as well. He mis-states the law in question, he mis-states what the FCC has done. Someone really ought to take him aside as suggest he just stop digging.
Suburban Express recently changed its “Terms & Conditions” so any legal action arising on the online transaction of tickets should take place in Ford County, roughly 30 miles north of Champaign.
In a statement on its website, the company said it chose Ford County “because of high availability of court dates, efficient court operation, excellent staff work ethic, low costs for both parties, easy parking, and other factors.”
This has nothing to do with "efficient court operations" and has everything to do with making it economically unfeasible for sued college students to fight back. Taking the action 30 miles away strips students of the following protection:
According to the Student Legal Services Operational Plan, Student Legal Services can only represent eligible students who have cases in or originating in Champaign County.
Toeppen's change of venue is carefully calculated to extract the most money/misery from the situation. That situation, of course, is Toeppen's inability to run a business and field criticism at the same time. In Toeppen's defense, he'll say he's never wrong and it's these spoiled brat students with overactive mouths who are to blame. (What? Did you think I was going to half-heartedly defend any aspect of Toeppen's behavior?)
With students forced to pay for their own defense against Toeppen's frivolous, vindictive lawsuits, the needle moves towards a higher default judgment rate. That's what Toeppen wants, considering his legal arguments are mostly indefensible. This should see his lawsuit-filing rate approaching the stratospheric highs of 2012-13, a two-year span in which Suburban Express filed 126 lawsuits. Toeppen is misusing the judicial system. Hopefully, the judges there will recognize his venue-shifting for what it is and push cases back to the proper courts.
We just wrote about famed pianist Dejan Lazic's rather misguided attempt to make use of Europe's new focus on "the right to be forgotten" to cajole the Washington Post into removing a 2010 review of one of his performances, written by Anne Midgette. The story has gotten lots of attention, and Lazic has posted a response on his website (as far as I can tell, there's no way to permalink just to the response).
In his response, he insists that many of his quotes were taken out of context, and notes (correctly) that the Washington Post did not post his entire initial request or response. However, his attempt to explain himself doesn't come off much better. He points out that he knew that the recent court ruling (not a "law" as he claims) was only about search engines in Europe and not publishers in the US -- and says he only made mention of it to explain a larger point he was making. That larger point? Anne Midgette is really mean, and lots of musicians don't like the reviews she writes about them. Yes, as far as I can tell, that's the extent of the larger "truth." Midgette is mean and it would be good to shut her up. Since Lazic felt his previous words were taken out of context, I'm going to post a big chunk of text here, all of which seems to sum up "Midgette writes a lot of mean reviews, and that's just not right!"
Therefore, I am not only speaking for myself here but also for many colleagues I dearly respect and/or I have made music and shared same stage with, all of which this particular reviewer criticised on so many occasions so harshly and unfairly, in a manner that is - in comparison with all the other reviews they have ever received (good, tepid, and bad) during their long and highly successful careers (in maestro Placido Domingo's case: 50 years) - simply over the top in sheer negativity and toxicity.
That simply does not comply with the principle of fairness in journalism.
Judging from numerous readers' comments from the past, I know this is a fact that so many Washington, D.C. area concert goers couldn't agree with more! Can it really be that all these artists performed so often so badly, and that predominantly in Washington, D.C. in presence of this particular reviewer!?
So, when can an individual, in this case a creative artist, simply say enough is enough, this journalist has crossed the line? How powerful and successful can an individual actually be in a dispute with mass media or say, a major corporation? Only after a scandal, or after his or her naked pictures have been shown in the newspapers or on the internet, or is there such a thing as intellectual harassment and bullying as well? After how many years would such an article become irrelevant for the society and taken as simply outdated, perhaps downgraded from the top page on Google searches, and when can it be classified as libellous and defamatory? And what do newspaper editors expect from reviewers?
Putting all these issues back into the context, it is evident that this case is not simply about retracting a single 'bad review' from the internet for the sake of one's own ego.
We have to be able to distinguish carefully between this and the bigger, broader picture of the whole issue and raise important questions for our interconnected society: how much can such regular, frequently horrific and highly destructive reviews by one single reviewer that has been given a chance to write for one of the most prestigious newspapers in the US affect entire generation of young, new potential concert goers, loyal longtime subscribers, sponsors, donors, art lovers and supporters in general, not to mention countless artists, orchestras and opera companies?
How much image damaging for the classical music in general can it potentially generate? Can such common, abundant, frequent 'reviews' actually inspire anyone to come and listen for the first time Washington's National Symphony Orchestra, visit the Washington National Opera, hear one of the guest artists, or even encourage somebody to learn to play an instrument at any given age and thus become a richer human being and a potential concert goer?
When is such a thing no longer fair journalism rooted in the concept of freedom of speech, and can there still be in the 21st century such a thing as a witch hunt?
Can we like this breed new generation of potential music lovers, concert and opera subscribers for many already troubled and financially fragile classical music institutions on a global scale?
I don't think so.
He does include a lot more before he gets to that point, but as far as I can tell, the issue to him here is that Midgette is really, really critical and some musicians don't like it, and thus it's no longer criticism and somehow... slander? Also, apparently, this one reviewer is helping to kill classical music? Something to that effect, and none of this makes Lazic comes off any better. Yes, there are reviewers out there who tend to be overly critical (and I have no idea if that's the case for Midgette one way or the other), but that's hardly a reason to shut them up. Besides, the idea that one overly critical reviewer is somehow leading to the death of classical music is kind of hilarious. Either way, go back and re-read the original in which Midgette is doing what a real critic should be doing. She highlights Lazic's great talent, and basically just notes that she was disappointed with some of his recent choices. That seems like perfectly valid criticism, and nowhere near anything that resembles defamation or even being uncharitably mean.
Look, people say mean stuff online all the time. Some of it is fair. Some of it isn't. Assuming that the stuff that you and your friends don't like deserves to be deleted because it's so mean, is simply ridiculous. There's no defense for that.
Pacific Standard Magazine has a really great article by Noah Berlatsky, looking at how copyright is stifling artistic criticism. Much of it focuses on a recent paper by John Tehranian, whom we've written about before. The paper is called Dangerous Undertakings: Sacred Texts and Copyright's Myth of Aesthetic Neutrality -- and focuses on how aesthetic judgments about the value of works almost always applies in copyright cases, which is a bit dangerous when it comes to art, criticism and free speech. Berlatsky's piece focuses on the famous case of The Wind Done Gone, the famous "unauthorized retelling" of Gone With The Wind from the perspective of another character. The lower court said it was infringing, and the appeals court overturned it -- but both were based, at least in part, on aesthetics, rather than underlying legal issues:
In its decision, the court pointed in particular to the fact that Scarlett and Mammy died in The Wind Done Gone as evidence that the sequel harmed the original. In financial terms, this objection doesn’t make much sense—as Tehranian points out, Kirk and Spock died in the Star Trek series at various points, and no one had any trouble bringing them back to life when needed. But the court’s objection does make sense if Gone With the Wind is viewed as inviolable, if any tarnishing of it is seen as illegitimate. “Thus, it is not whether the work is parody or sequel that truly appears to drive the court’s decision;” Tehranian concludes, “it is destruction of the work’s romanticism—a romanticism that is grounded in a distinctly whitewashed vision of the antebellum.”
The Eleventh Circuit Court of Appeals eventually reversed the lower court. But aesthetics were involved in that decision as well. The appeals court based its decision on the estimation that Gone With the Wind was not an inviolable classic, but was instead a flawed and indeed racist work. The court particularly singled out the fact that the Mitchell estate had prevented authorized sequels from discussing homosexuality or miscegenation. The Mitchell estate was trying to prevent re-evaluation or criticism of Gone With the Wind, and, implicitly, of its vision of the South. The appeals court ruled that such re-evaluation and criticism was in fact aesthetically valuable. “To the Eleventh Circuit,” Tehranian concludes, “the time had come to de-canonize Gone With the Wind and its inviolability.”
Berlatsky suggests that Tehranian argues this is okay because the fact that the Copyright clause of the Constitution talks about promoting the progress of "the useful arts," but that's a misreading of the Constitutional clause (and Tehranian's paper). While many people confuse this, the "useful arts" part of the clause is actually referring to patent protection ("useful arts" at the time meant inventions effectively). Copyright is supposed to be for promoting the progress of "science" (which at the time really meant "learning"). The real issue is what "promotes the progress" -- and that's where the aesthetic nature comes into play.
Tehranian's paper actually goes on to discuss another case, which we've discussed as well, which is the similar story of someone trying to write an unauthorized sequel to Catcher in the Rye. Except in that case, the judge banned the publication of the book entirely. And, again, aesthetic values came into play. As Tehranian notes:
The results of the two cases differed. In the former, an injunction
against publication of the unauthorized work was lifted, and in the latter, the
injunction ultimately stood. However, in both cases, aesthetic considerations – namely
juridical conceptions of history, hierarchy and value pertaining to the underlying
works and their allegedly infringing alter egos – dominated the fair-use analysis and
ultimately enabled the law’s selective consecration of cultural meaning, its
development of epistemological narratives and its beatification of sacred texts.
Later in the paper:
And aesthetic judgments on the
relative value of unauthorized derivative works appear to have made a key difference
in the court’s decision to issue the injunction. Consider the only mention that the
Salinger court makes of the overarching goals of the copyright system. Seeking to
reconcile its ruling with copyright’s role in promoting progress in the arts, the
Salinger court reasoned that ‘some artists may be further incentivized to create
original works due to the availability of the right not to produce any sequels’
(Salinger 2010b: 268, emphasis in original). As a first matter, the court’s speculation
on this point strains all credulity. But regardless of how one feels about the bizarre
conjecture that the right not to produce sequels can incentivize creation, it is clear that
the court’s statement rests on a tacit aesthetic judgment: that it is better to preserve (ex
post) the incentive to create The Catcher in the Rye than it is to stimulate the creation
of unauthorized sequels. The calculus here is fairly remarkable: the court chooses to
enjoin definitely the publication of unauthorized derivatives – works that could
contribute to progress in the arts – on the chance, based on idle speculation, that
some artists may create more because they can rest secure in the knowledge that no
one can create sequels of their works. The hierarchy at play is simple: the original
work implicitly trumps the sequel(s) and/or derivatives, especially those of the
unauthorized variety. Certainly, for every Godfather II and Return of the Jedi, there
are dozens of Blues Brothers 2000’s. But in deciding the fate of The Wind Done
Gone, the Eleventh Circuit certainly did not seem bothered by this possibility, as it
adopted a radically different aesthetic judgment of the unauthorized derivative. At a
more subconscious level and in the context of our times, it perhaps feels less wrong to
allow someone to skewer the dated artistic vision of Margaret Mitchell than to permit
the adulteration of J.D. Salinger’s beloved Holden Caulfield.
As for the idea that this is an acceptable state of affairs, I find that to be troubling. We shouldn't rely on judges to determine the overall aesthetic value of things, because that is, by definition, a regulation on speech that shouldn't be permitted under the First Amendment. Judges determining the aesthetic value of a particular work is a dangerous path to tread.
Berlatsky argues that the culprit here is copyright terms, and that we'd have fewer of these problems if copyright were shorter. Undoubtedly that's true -- depending on the length, the works discussed above would likely be public domain by now. But, that still fails to take into account attempts to do more with recent works.
As we've covered recently fan fiction is an important form of speech, even when done commercially. Thus, an even better solution to all of this is to go back to basics: copyright should only protect the expression, not the idea. This is what we're told, but it often seems to fail in these cases. Writing fan fiction, unauthorized retellings, unauthorized sequels and the like are all very different forms of expression. While they may quote and/or reference the original, they are, by definition, not copies. If copyright were properly applied, these would be allowed as not copying the expression (and, at worst, as transformative, derivative works protected by fair use).
Unfortunately, however, judges feel the need to "protect" original works based on aesthetic values, and that's a huge problem for culture, free speech and criticism.
It's amazing how often trademark claims are used simply as a tool for censoring critics. A legal framework that is supposed to be about protecting consumers has been twisted into a strong-arm thug. That said, most times the plaintiffs in these cases at least make a show of pretending that they aren't simply trying to suppress critical speech -- even if the courts frequently see right through those attempts and opt to protect free speech. That doesn't appear to be the case in one federal court in Virginia, which has failed to protect the mocking speech of conservative group Radiance Foundation in a blog post criticizing the NAACP.
In that case, Radiance Foundation v. NAACP, the fight was over a blog post that criticized the NAACP. The Radiance Foundation is a conservative non-profit that advocates for what it perceives to be appropriate family values. In a blog post titled “NAACP: National Association for the Abortion of Colored People,” Radiance claimed that the NAACP embraces “all things liberal, most things socialistic, and nothing pro-life.”
The NAACP responded with a letter to Radiance threatening a lawsuit if it did not cease “using” the NAACP’s trademark. Radiance called on the courts for protection, asking for a declaration the blog post was protected speech. After a bench trial, Judge Raymond Jackson ruled against Radiance, finding that the post infringed the NAACP’s trademark and giving little credence to Radiance’s First Amendment claim.
I'm not entirely certain where the misunderstanding on the judge's part is here, but it's been well-established that the First Amendment, and criticism in particular, trumps trademark law. The Radiance Foundation's speech, while wholly obnoxious, is and ought to be protected. As a group that relies on the criticism of well-established powers to advance its agenda, I would think the NAACP would want to be especially careful not to erode the power of free speech in the land it hopes to change. Attempting to apply trademark law to political speech instead of simply economic speech, meaning advertising, is a dangerous step.
The EFF in particular appears eager to get involved in the case.
Today EFF, together with the ACLU of Virginia, filed an amicus brief in the appeal of this ruling. We are supporting Radiance’s appeal not because we agree with its message, but because a decision holding it liable for trademark infringement threatens a huge range of expression. Our brief explains that Judge Jackson’s decision misreads both trademark law and the First Amendment. There are many cases holding that use of a trademark in speech commenting on or criticizing the trademark owner is not infringement. Moreover, the First Amendment provides an independent reason for dismissing this trademark claim. We hope the Fourth Circuit agrees and protects the right to mention or mock a trademark, just as it protects the right to mock a trademark owner.
It's the right decision and a great place to take a stand, because it highlights the ideal: the protection of free speech, even if it is speech with which one disagrees.
from the the-way-to-make-money-without-providing-products-or-services dept
KlearGear's unprecedented $3,500 charge for customer complaints tossed whatever little reputation it had down the drain and it's abusive actions earned it a $300,000 judgement when a former customer took it to court. Of course, the company only exists as a half-assed website and handful of remailing services. Someone named Vic Mathieu claimed the company is actually run by Descoteaux Boutiques out of France, and as such, is out of reach of the judgement.
If you were put off by KlearGear.com’s ridiculous “Non-Disparagement” fee, which penalizes customers for sharing their bad shopping experiences with the public, another online retailer is apparently trying to go one further, by not only banning customers from saying bad things online, but by also forbidding them from even bringing up the threat of a complaint or a credit card chargeback.
“You agree not to file any complaint, chargeback, claim, dispute, or make any public forum post, review, Better Business Bureau complaint, social media post, or any public statement regarding the order, our website, or any issue regarding your order, for any reason, within this 90 day period, or to threaten to do so within the 90 day period, or it is a breach of the terms of sale, creating liability for damages in the amount of $250, plus any additional fees, damages – both consequential and incidental, calculated on an ongoing basis.”
The Terms also claim the customer agrees that, even after the 90 days are up, the “sole method of dispute resolution in all cases… shall be binding arbitration to take place in New York City, with all expenses paid by the respective parties.”
Yes, this is from the same company that states this on its About Us page:
We stand behind every sale and make every effort to satisfy each customer. Our goal is to ensure each customer has the most pleasurable and stream-lined ordering process when using our site, and that they save the most money always.
There's nothing customer-friendly about its Terms of Service and its return policy is just as antagonistic.
Final sale items may not be returned or exchanged for any reason - they are sold as-is, with all sales final… Additional Restrictions: All Lifeproof, Otterbox, Mophie and Apple brand products are not eligible for return or exchange for any reason. Special order, customized, or personalized items are not eligible for return or exchange for any reason. All cosmetic items are not eligible for return or exchange. All refurbished/reconditioned products are final sale, with no returns or exchanges permitted.
Oddly enough, Lifeproof, Otterbox and Apple products are the ones listed most in complaints. According to customers, these are not authentic products, but are cheap knockoffs with design issues and cosmetic flaws. Some are completely unusable.
Trying to cancel or modify an order after submitting will also trigger a $250 fee. "Breaching" the extremely restrictive return/exchange policy will do the same thing.
The ultimate problem here is not just the lousy products backed by worse policies enforced by truly abysmal human beings. It's that Online Accessory Outlet is nothing more than a roving scam operation designed to take money from people in exchange for terrible products. The company has no real address, no real point of contact and has operated a variety of websites featuring the same products and policies. Everything posted on its site with the intent of touting its "trustworthiness" is a lie, as the Consumerist discovered.
For fun and giggles, we’ve written to the three other organizations touted on the site — Angie’s List, buySAFE, and Trusted Shops — to confirm that these endorsements are also false.
We’ve heard back from a rep for buySAFE, who confirmed that Accessory Outlet is not certified.
“The seal you see is an old, bad copy of a buySAFE seal,” explains the rep.
And a rep for Angie’s List says there is no way Accessory Outlet could have won a Super Service Award — which requires perfect scores — because it has no reviews on the site.
“They have no reviews, which equals no grade,” explains the Angie’s rep. “They aren’t SSA winners and shouldn’t be using the badge.”
And a rep for Trusted Shops, which does not certify companies in the U.S. says Accessory Outlet is definitely not certified by the service.
The lawsuit names "Accessory Outlet" at onlineaccessoryoutlet.com. But the Better Business Bureau -- while noting that the company does not have the A+ rating it claims to on its website -- lists two other URLs the company has used.
You agree not to file or initiate any complaint, chargeback, dispute, public comment, forum post, website post, social media post, or any claim related to any transaction with our website and/or company. By using our website, making any purchase, or conducting any transaction with us, you agree to all terms and conditions stated herein. Any action in breach of this agreement that causes reversal of any payment in full or in part shall result in a collections action for the full or partial order total (the amount reversed) plus an additional $50. You agree that any breach of this agreement shall also constitute liability in the amount of $200 plus any related costs directly or indirectly relating from any such breach. These costs shall be collected using a collections agency and/or civil action in New York. You agree that the exclusive forum for any dispute or claim relating to any transaction conducted through our website shall be New York.
The current address for Online Accessory Outlet is a remailer. Its contact person (found through complaint sites, not its actual site) is likely as authentic as the glowing 5-star reviews artificially pumping up its rating (as True Accessory) at TrustPilot. Roger Klein, the supposed "Marketing Director" of True Accessory/Online Accessory Outlet updated the company's Manta profile at some point, claiming it's been in business since 2011. True Accessory's history at the Internet Archive only traces back to early 2014, which is in line with the complaints filed. (Feb. 2014 is the first archived version. Complaints begin piling up in March.) The horrendous terms of service went into place almost immediately, although the fees started at $200 rather than $250. Despite the website being shut down, a Facebook page for True Accessory (sporting a very suspicious 2,158 likes) is still live, though apparently unattended.
Unlike KlearGear, contact through email has been successful for customers with complaints, although those complaints are met with threats. (Its only listed phone number now simply states "Customer service is not available" and dumps you directly into voice mail.) From the lawsuit:
Accessory Outlet emailed Cox back, stating that Cox would face a $250 penalty for contacting her credit card company, that Accessory Outlet would send her account to a collections agency, and that "[t]his will put a negative mark on your credit for 7 years and will also result in calls to your home and/or work." The email continued: "Further, additional fees for any correspondence with your card issuer will also be billed to you on an hourly basis and a flat rate $50 fee for the dispute or claim."
A later email was even more direct about the company's desire to punish Cox for complaining.
Contact your lawyer, spend more time and money if you wish. You will be billed and the amount we will bill you for will continue to rise with every email and every second we dedicate to correspondence of any kind pertaining to your breach of the terms of sale. Thank you.
The problem with pursuing shady companies like this is that there's no one to hold accountable. Multiple addresses and multiple URLs suggest someone's trying to make as much money as they can before being forced to bury one name and resurface as a "new" business. So, all you can do is try to steer people away from these companies. The Streisand Effect is greatly blunted when the entity on the other end obviously doesn't care what customers think of them, just as long as it attracts enough suckers to make its sales of cheap knockoffs profitable.