The whole right to be forgotten thing over in Europe continues to get more and more bizarre. Not too long ago, we wrote about one Thomas Goolnik, who had succeeded in getting an old NY Times story about him "delinked" from his name in Europe. The NY Times then wrote about that delinking, and we wrote about the NY Times article. Mr. Goolnik then succeeded in having our article about his successful right to be forgotten attempt also forgotten by Google. So we wrote about that too. And, once again, Goolnik succeeded in having that story forgotten. As of yet, it appears our final story on Goolnik has remained accessible on European searches for Goolnik's name, but we have no idea if it's because Google has realized that it should remain up or if Goolnik just hasn't made a request.
Meanwhile, it appears that the guy who first convinced the European Court of Justice to enforce this right to be forgotten, Mario Costeja Gonzalez, may have run into a similar situation. As you probably remember, Costeja brought the original case that argued that Google should no longer show results on searches for his name that linked to some stories in the late 90s about his being forced to sell some land to cover debts. The Court eventually decided that since this information was no longer "relevant," that under the data protection directive, it should be "delinked" in Google's database as a "privacy" measure.
Of course, as many people pointed out, in bringing that very case, the details of Costeja's financial transactions suddenly became relevant again. And, apparently that resulted in more people commenting on Costeja, including an article entitled "The unforgettable story of the seizure to the defaulter Mario Costeja Gonzalez that happened in 1998." And, as you might imagine, he wasn't too happy about some of the comments, and with this newfound power that he helped create in hand, he demanded that Google also take down links to such comments (most likely including that article linked in this paragraph).
And here's where it gets fun: Google refused. And so Costeja went to the Spanish Data Protection Authority to complain... and the Spanish DPA rejected his claim, noting that this information is now relevant in part because Costeja himself made it relevant again.
Now the DPA finds that there is indeed a preponderant interest of the public in the comments about the famous case that gave rise to the CJEU judgment of May 13, 2014 – and expressly reminds that the claimant itself went public about the details.
So, yes, the right to be forgotten has now made the story that was "successfully" forgotten originally so newsworthy that it may no longer be forgotten, and in fact is much more widely known. I think we've heard of some term for that before...
As you probably heard, last week there was a big story involving North South Carolina police officer Michael Slager being charged with murder for the shooting death of Walter Scott. Slager had told a story about how Scott had taken his taser. But, a few days later, a bystander's video of the incident was released and told a very different story. If you didn't see it, here is the video, which is rather graphic, seeing as someone is shot to death in the video.
We didn't cover this story, which surprised some -- since we frequently cover police brutality stories, with a special focus on stories involving cellphone videos being used to dispute the "official line" from police. However, this was one case where the issue had received so much press coverage that we felt we had little to add to the story.
The publicist who is apparently going around trying to charge for this (one assumes after being retained by Santana) has some interesting views on how this all works:
“It’s been allowed to be used for free for over a week now,” Max Markson, CEO of the Sydney-based Markson Sparks group, told the Daily News.
“Now it’s going to be licensed and now you have to pay for it.”
But there's a big problem with this plan, and that is known as "fair use." News reporting is one of the fundamental parts of fair use. Unfortunately, the reporter from the NY Times, Frances Robles, seems to have very little knowledge about fair use and relied on a ridiculously biased expert to argue otherwise. She spoke with Frederic Haber of the Copyright Clearance Center, an organization that goes around trying to license everything and is fundamentally against fair use. And yet, Robles insisted that "copyright experts agree" that fair use somehow no longer applies:
Copyright experts agreed that although news agencies are allowed to use even copyrighted material under what is called “fair use” clauses in the law that time period has passed.
Many actual copyright experts challenged Robles about this issue on Twitter, and she insists she spoke to two others besides Haber and they all agreed, though when questioned, she refused to name who those copyright experts were. And that's a problem, because all three of those copyright experts -- assuming Robles actually found three -- are wrong. There is no "time limit" element to fair use. At best someone might try to argue that after a certain period of time the piece was no longer newsworthy and thus fair use no longer applied, but that seems like a huge stretch.
“Fair usage for video exists and networks can still use it for a certain amount of time,” Markson further explained, “like with footage from the Olympics, but the fair usage fee is for people who want to use it again. And in the lead-up to the trial we expect there will be more requests for licensing.”
This makes no sense. There is no such thing as a "fair usage fee." Markson doesn't seem to have any idea how fair use works, and it's unfortunate that the NY Times report that many people are basing their own reporting on isn't any better.
There is plenty of case law that I'm sure any real "copyright expert" would have passed along to Robles had she asked them. Hell, just last year there was a good fair use ruling saying that Bloomberg was allowed to distribute a recording of Swatch's investor calls. The idea that time does away with fair use doesn't make much sense. There's a 1968 case in which Time Life sued Random House and others claiming that using stills from the famed Zapruder film of President Kennedy's assassination was infringing, but the court found it to be fair use, despite it happening years after the film was made (rather than weeks in the case of the Walter Scott video). Then there's the case involving video footage of the beating of Reginald Denny, in which the videographers sued CBS over their use and distribution of the footage (including that it was briefly broadcast on Court TV). Here again, courts found the use to be fair use noting:
We conclude that each factor, particularly the nature of the copyrighted work, weighs in favor of fair use except the substantiality of the use, which we treat as neutral. Accordingly, we agree with the district court that Court TV's use was protected, and we affirm the grant of summary judgment in its favor.
So it seems rather difficult to see how fair use magically disappeared, no matter what Frederic Haber or the mysterious other two "copyright experts" told Robles.
“At some point it’s not newsworthy anymore and you are using it for commercial benefit,” said Frederic Haber, a vice president and general counsel of the Copyright Clearance Center, a collective licensing organization that works on behalf of copyright holders such as The New York Times. The issue could change once the video is played in court during a trial, he said.
Robles later also seems more confused about how copyright works in suggesting that because Walter Scott's family gave the NY Times the video, it wouldn't be subject to these demands for payment:
The Times has used the video with the family’s permission and not received a cease and desist letter.
That sounds good but is meaningless. The Scott family doesn't have the copyright on the video. Santana does. They have no right to license it and the NY Times is clearly relying on fair use in its presentation as well.
Unfortunately, because most reporters don't really want to bother to understand the issue, many took the NY Times report and ran with it, insisting that, yes, media outlets now have to pay to continue using the video. Even the Poynter Institute, which should know better, ran with a headline saying that the "media must pay" to continue using the video. The article itself at least discusses the fair use issue, but the headline seems to ignore that.
I'm guessing that many big news organizations will just pay up, because it's cheaper than fighting, but they have every right to fight this attempt to undermine fair use. The video is newsworthy and its use in reporting is the kind of quintessential example of fair use that is often used to show how fair use works.
Shawn Musgrave, over at Muckrock, recently sought some ICE documents via a FOIA request, specifically looking at "Operation Safeguard," a two-week program that ICE ran using Predator drones to police the US-Mexico border back in 2003. Musgrave sought ICE documents about Operation Safeguard, but ICE said that Musgrave didn't qualify as a journalist, thus limiting the power of his request (and allowing ICE to ask for more money to complete the request). Musgrave pointed to many of his published stories, but in response was told
his request was still being rejectedbecause the information is not about "current events or that would be of current interest to the public."
ICE is trying to play games with the definition of "news" in that response. The issue is most certainly "current interest to the public," and for ICE to self-decide otherwise is preposterous. Letting ICE FOIA officials determine what is and what is not newsworthy seems like opening up a huge loophole for ICE to create all sorts of problems on the FOIA front -- something that it seems particularly interested in doing.
ICE also claimed that there was enough info out there already about Operation Safeguard, so no need to release any more:
As Musgrave notes, this is incredibly misleading:
Having conducted my own online search ahead of submitting the FOIA request, I know foremost that studies from the Congressional Research Service refer to Operation Safeguard primarily in footnotes. Such CRS reports are conveniently posted on the Federation of American Scientists website.
What’s more, Senator Cantwell pressed for drones along the northern border in 2006 by vaguely citing Operation Safeguard’s findings.
But the Center for International Policy came to the most critical finding of all in surveying domestic drones in April 2013: “Unfortunately, Congress never reviewed the results of Operation Safeguard pilot project.”
Such a bounty is enviable, but is no substitute for the documents themselves. And while ICE may not see much news value in the origins of a program currently under intense scrutiny, someone somewhere just might.
It really does seem like operations like ICE really are just looking for excuses to reject FOIA requests these days...
While we've talked in the past about whether or not a blog or publication should out a previously anonymous commenter if the outting would be newsworthy, it's worth noting that there was no real consensus reached amongst the venerated Techdirt community. Some of us think that there might be room for such a move. Others, such as myself, take more of a hard line approach to protecting anonymity (see the comments section in the link above for what I'd say is a really nice discussion on the question). Either way, with the widespread blogosphere and public participation in online communities only ratcheting ever-higher, it's useful to bring stories to the table to discuss how this all works when such events do occur.
This latest example is about John Huppenthal, Arizona's Superintendent of Public Instruction and apparent frequent anonymous commenter at Blog For Arizona. Bob Lord, of BFA, recently penned a post that outs Huppenthal for his previously anonymous and simultaneously insane comments on the site.
Okay, for the few of you who have not figured this out yet, by all indication our friend Thucky is John Huppenthal, the Superintendent of Public Instruction, which is the fifth highest elected office in the state. This may be a first. I don't know of any other elected official who has led a double life as a serial blog troll besides John Huppenthal. Chalk that up to Arizona having the market cornered on political craziness, I guess.
The post then outs Huppenthal for commenting anonymously there, on other conservative sites, and for creating duplicate handles all over the place in order to fake some kind of consensus around what he says. And what he was saying, analysis indicates, is batshit crazy. Such as:
-"bat shit crazy stuff"!!! Its in Obamas book, Obama said he was born in Kenya!!!! If this were a Republican, you would be going nuts demanding those college records.
-Hitler worked to eliminate the Jews. Margaret Sanger, founder of Planned Parenthood was given the job of eliminating African Americans. Hitler fed 6 million Jews into the ovens. Sanger has fed 16 million African Americans into the abortion mills.
-No spanish radio stations, no spanish billboards, no spanish tv, no spanish newspapers. This is America, speak English.
Now, it's worth noting that Huppenthal has since acknowledged that he did indeed make those comments under several different names, speaking of and to himself in the third person. That acknowledgement was followed up with something about believing in public discourse, regretting certain inflammatory words (Hitler! Kenya!), but hoping that we should all recognize that our great country has a long history of anonymous speech from politicians.
And...I happen to think he's right on that last point. Look, Huppenthal is a blowhard, fact-ignoring caricature of a politician on one end of the political spectrum. He's not representative of anything other than his own idiocy, but the sites he went to offered anonymous commenting and then pulled the rug out from under him when they decided that his commenting was a story. They're not wrong; Huppenthal's online antics and self-sock-puppetry is indeed a story, but does that story outweigh the fallout from the removal of anonymity? I would say no. Others, including other writers here at Techdirt, might say yes. I'm more interested in what you all think, anonymous or otherwise.