Here's something you don't see every day: a copyright case in which fair use prevails. David Adjmi produced a play entitled 3C, a parody-take on the classic sitcom Three's Company, the copyright of which is held by DLT Entertainment. After 2 months of off-Broadway production and just before Adjmi wanted to translate the play for literary release, DLT fired off a cease and desist letter. Rather than retreating, Adjmi, with the support of the Dramatists Guild of America, went to court to get his work affirmed as non-infringing, arguing that it is both parody and transformative. U.S. District Judge Loretta Preska ruled in agreement in a whopper of a ruling (you can read the full ruling here or embedded below). Her comments within the ruling demonstrate a textbook understanding of both copyright and fair use.
She writes that the body of copyright law “is designed to foster creativity. It does so by, in effect, managing monopolies in knowledge: granting one in original work to reward its creator, but ensuring it is limited, temporary, and does not operate as a moratorium on certain ideas. The law is agnostic between creators and infringers, favoring only creativity and the harvest of knowledge. Here, ‘further protection against parody does little to promote creativity, but it places substantial inhibition upon the creativity of authors adept at using parody.' ”
In addition to finding that 3C is clearly a transformative work, as opposed to anything resembling blatant copying, this ruling reads like a best-case scenario for those of us that believe all kinds of transformative works building off of existing works are protected, useful, creative and necessary. Adjmi had a message to send and, while the original Three's Company might serve as the starting line for his creative vehicle, the finish line is somewhere far different than that of the original sitcom. Nobody attending the play lacked the understanding that this was something new, something different from the original show, the original show's message, or that the play was anything other than social commentary using a trope-ladened show from the 70's.
According to Adjmi, his 3C was a comment on the "ways the television show presented and reinforced stereotypes about gender, age and sexual orientation" as well as "the times in which the show flourished -- when sexual liberation had begun to reshape American society, and dominant cultural forces like television attempted to channel it in commercially profitable directions, while many forms of sexual oppression continued."
That kind of commentary is important and, even if you disagree with the message, or think that platforming the commentary on a show as silly as Three's Company is misguided, those aren't questions of copyright law. Once the work becomes parody, never mind transformative, there ends the copyright argument. Judge Preska delved into the four-factor analysis of the claim, finding that DLT's claim of direct copying of characters, settings and themes to be baseless.
“Despite the many similarities between the two, 3C is clearly a transformative use of Three’s Company,” she writes. “3C conjures up Three’s Company by way of familiar character elements, settings and plot themes, and uses them to turn Three’s Company’s sunny 1970s Santa Monica into an upside-down, dark version of itself. DLT might not like the transformation, but it is a transformation nonetheless.”
More likely, the more correct assertion would be that DLT might really like money, but they can't get any out of Adjmi just because some elements of Three's Company appear in his parody and transformative play.
Walmart. Just saying the company's name is usually enough to evoke unbidden brain-sounds of terrifying organ music and images of pitchfork-wielding devil-imps. But, hey, it's a large business that's been around for quite a while, so I guess it's doing alright. It seems to me that somebody might want to call a meeting with the Walmart legal brain trust, because the company's campaign against a silly and simple parody website isn't achieving much of anything at all, and is in fact Streisanding the parody site into national views.
This story starts back in 2012, when ICANN saw fit to hold a firesale on domain extensions. Buying them up was all the rage for reasons unfathomable to this author. Still, that was the impetus for how we arrived at Walmart going after a site with a .horse extension.
That explains why, for the mere price of $29, you can now purchase a .horse domain name, if you want to do such a thing. "With .HORSE, there are no hurdles between equine enthusiasts on the Internet," says United Domains. "Giddy up and register .HORSE today!" It doesn't seem like too many people have been receptive to this pun-based sales pitch, but a 34-year-old named Jeph Jacques saw the opportunity for what he calls an "art project."
"I thought, 'Alright I'm gonna buy this and do something stupid with it and see what happens," he told me. And readers, he did just that.
This grand art project? Buying up the domain www.walmart.horse, slapping a picture of the front of a Walmart store with a, you guessed it, horse superimposed over the top, and declaring the whole thing a monumental artistic success. Seriously, this is the only thing at the website if you go there.
Monet it might not be, but the image is suddenly competing with the likes of famous artists for attention and views thanks to Walmart freaking the hell out about it. In its infamous wisdom, Walmart and its crackerjack legal team have demanded that the whole shebang be taken down, claiming infringement of trademark. The C&D letter Walmart helpfully sent along suggested that Jacques' website would confuse customers into thinking that Walmart, who is not in either the business of horses nor in the business of having a sense of humor, might have some affiliation to walmart.horse. Interestingly, the letter targets the domain name, rather than the image on the site itself. I'm not personally aware of any infringement claim on domain name being refuted by the actual extension used, but this would seem to be a ripe candidate for that argument, given that Walmart is not in the horse business.
But this really shouldn't even get that far, given the whole purpose of the site itself and the artistic nature of the creator.
Jacques argues that his site is "an obvious parody and therefore falls under fair use." He also told Walmart in his response that he'd be happy to put a disclaimer on his site to let visitors know he is not actually affiliated with the Waltons. And although he doesn't want to bow to the company just yet, he says he's already proved his original hypothesis: that corporations spend an absurd amount of time policing their trademarks.
Point proven, I suppose. Meanwhile, a tiny joke site has been Streisanded into the national conversation because Walmart just couldn't resist.
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.
from the boring-but-not-necessarily-effective dept
China has been trying for some time to clamp down on the Internet, in an attempt to prevent it from being used in ways that threaten the authorities' control. Since the appointment of China's new leader, Xi Jinping, the situation has deteriorated -- China Digital Times speaks of the "new normal" of sharpened control. Here's yet another move to that end, as reported by Reuters:
China will ban from March 1 internet accounts that impersonate people or organizations, and enforce the requirement that people use real names when registering accounts online, its internet watchdog said on Wednesday.
The ban on parody accounts might seem strange, but is likely to have quite an impact on China's online culture:
The ban on impersonations includes accounts that purport to be government bodies, such as China's anti-corruption agency and news organizations like the People's Daily state newspaper, as well as accounts that impersonate foreign leaders, such as U.S. President Barack Obama and Russia's Vladimir Putin, the Cyberspace Administration of China (CAC) said on its website.
Many users of social media create parody accounts of prominent figures and institutions to poke fun at them.
However, once users have registered their real names, they will be permitted to use nicknames, as the new regulation explains:
Internet information service providers shall, according to the principle of "real name backstage, voluntary choice front stage”, demand Internet information service users to register accounts after undergoing real identity information authentication.
Internet information service users shall, when registering accounts, conclude an agreement with the Internet information service provider, and commit to respect the seven baselines of laws and regulations, the Socialist system, the national interest, citizens' lawful rights and interest, the public order, social moral customs and the veracity of information.
The Internet user account name registered and used by any body or individual may not contain the following elements:
(1) content violating the provisions of the Constitution, laws or regulations;
(2) content violating national security, leaking State secrets, subverting the national regime, or destroying national unity;
(3) content harming the honour and interests of the State, or harming the public interest;
(4) content inciting ethnic hatred or ethnic discrimination, or destroying ethnic unity;
(5) content destroying State religious policies, propagating heresy or feudal superstition;
(6) content disseminating rumours, disrupting social order, or destroying social stability;
(7) content disseminating obscenity, sex, gambling, violence, murder, terror or instigating crime;
(8) content defaming or slandering others, or infringing others’ lawful rights and interests;
(9) other content prohibited by laws and administrative regulations.
That's obviously a pretty comprehensive list, and might suggest that the Chinese Internet is doomed to become totally boring -- and completely censored. That may be the authorities' intention, but it's worth bearing in mind that this is not the first time that the Chinese government has attempted to impose real-name registration online.
A fascinating series of five articles on the Fei Chang Dao site details how similar campaigns to tame the online world have been introduced many times since 2003, evidently without much success. Although the current crackdown on Internet freedom certainly appears more serious than earlier ones, it remains to be seen whether the Chinese authorities manage to impose real-name registration on all services, or whether this will turn out to be just the latest in a long string of failures.
There's been plenty of propaganda concerning the net neutrality fight, but with FCC boss Tom Wheeler finally making it official that the FCC is going to move to reclassify broadband, it's kicked into high gear of ridiculousness. An astroturfing front group that's anti-net neutrality is trying to make a "viral" anti-net neutrality video, and it did so in the most bizarre way, by making an attempted parody porno video, based on the classic "cable guy" porno trope. The video is sorta SFW, since the "joke" is that "the government" stops the homeowner from getting naked with the cable guy, but people at work might still question what the hell you're watching:
The video makes no sense at all. You get the sense that some not particularly internet savvy (or, really, clever at all) telco wonks got together and said "how do we make a viral video -- I know, let's pretend it's a porn film!" And then tried to shoehorn in some sort of message. But the "message" appears to be that whoever put together the video doesn't know anything about what net neutrality is.
Next up, we've got a not quite as bad, but still cringe-worthy attempt by CTIA, the lobbying arm of the mobile operators, which has been arguing that mobile broadband shouldn't be covered by the new net neutrality rules (a fight it appears it has lost), posting a ridiculously poorly acted "shill in the street interview" video, in which really bad actors pretend to be average people answering questions about their mobile service. It's clearly scripted, given the overexaggerated reactions and stilted dialog. The funniest bit comes in the first "interview" where this bad actor (who looks like a DC lobbyist) in a DC lobbyist video claims, "Well, Washington isn't actually known for its next-gen thinking, now is it?" No, "real person," it's not.
There's also the second interview, with the woman who shows up pre-shocked, and proceeds to "complain" about the totally fake "new taxes" that are not actually going to show up because of Title II reclassification. And then there's the third guy, who, when prompted to take off his earbuds when the "interviewer" sits next to him and asks what he's listening to, says: "Pandora.... it's free." Because, yes, that's how every "real person" describes what they're listening to. By the price of it. And then, again, unprompted, he explains how great it is that his mobile operator doesn't make him pay for data when listening to Pandora (leaving out the fact that this is because his operator has set in place artificially low data caps). The video concludes with the "regular guy" interviewer saying, "There you have it, the vast majority of Americans are against stagnation, against higher fees and against fewer choices."
Of course, the video doesn't show that at all. And of course, putting wireless under Title II doesn't mean any of those things. In fact, it could mean more choices and lower fees. But who needs details when you have "real" shills in the street?
Finally, we've got an infographic from another front group, called "Mobile Future," whose staffers just happen to include former CTIA and US Telecom Association employees (coincidence, I'm sure). The infographic pretends to show how startups will be hindered by Title II, because now companies can (they claim) take your startup to the FCC to have your service declared unlawful, and you'll have to hire telecom lawyers, and no VC will fund you. Here's a snippet:
This is, of course, complete hogwash. Why not take it from a real venture capitalist, like Fred Wilson (early money into Twitter, Tumblr, Soundcloud, Kickstarter, Etsy and many more). He pointed out the real story of what would happen in a world without these net neutrality rules, where it would make life nearly impossible for startups, because they wouldn't be able to afford to pay the big ISPs to get equal treatment to the major players. Who do you trust? A bunch of DC insiders who have never worked in the startup or venture investing world (their staff appears to include entirely DC-based folks who have either worked in the government or lobbying organizations) or one of the most famous venture capitalists around?
The simple fact is that net neutrality rules help startups. Startups aren't going to have to hire a lawyer to go to the FCC because these are rules for broadband providers, not the services built on top of the broadband. The infographic is pure FUD from an astroturf group acting like sore losers.
I imagine we'll continue to see more of this kind of propaganda, but the laughably bad quality of it all just goes to show how incredibly desperate they've become.
The last time we wrote about Tiger Woods, it was way back in the day when he was best known for putting golf balls in small holes instead of [Ed.: Tim, did you really think we were going to allow this to stay in the post?]. Even back then, however, Woods demonstrated his lack of knowledge concerning the Streisand effect, trying to stifle a story and spotlighting it instead. It seems the lesson has yet to be learned. This go around, Woods has decided to respond to a barely note-worthy piece of obvious satire in Golf Digest by issuing a formal rebuttal to it in The Players' Tribune because... well, I don't know why really. The satire itself is both clearly marked and decidedly vanilla.
If you hadn't seen it—and nobody had, because it wasn't yet online—Woods is apoplectic about a fake Q&A by sportswriting legend Dan Jenkins. It is labeled as "fake" on the cover, and in the headline, and in the table of contents, so no one, not even America's dads, could possibly have believed that it was actually Tiger Woods declaring that he fired caddy swing coach Butch Harmon because "Butchie was making me tip too many people."
There's no exaggeration here when it comes to how clearly this piece is noting its own satire. The damned title of the piece is: My (Fake) Interview With Tiger*: *Or how it plays out in my mind. The fake Q&A includes such scathing satire as:
Q:TV still loves you.
Tiger: The print press still loves you. The average fans still love you. Of course the average fans still love the Kardashians, too, but I feel sure America will find a cure for this someday. I just do what Steiny says.
Yawn. Anyway, the guy that used to be good at golf decided to issue his own formal and very real rebuttal to the fake Tiger that Dan Jenkins created in his head, leading to the very first ever war of words between a real and fictional version of the same professional sports star.
Did you read Dan Jenkins' interview with me in the latest Golf Digest? I hope not. Because it wasn't me. It was some jerk he created to pretend he was talking to me. That's right, Jenkins faked an interview, which fails as parody, and is really more like a grudge-fueled piece of character assassination. Journalistically and ethically, can you sink any lower?
I like to think I have a good sense of humor, and that I'm more than willing to laugh at myself.
Mmm, no on both counts, I think. In the meantime, Woods' going to battle over this has, you guessed it, put a big old spotlight on the now published article. It's, frankly, all the free advertising the author could ever want. And for what? For satire that's barely funny and would have otherwise gone completely unnoticed? That's called landing in the rough, Tiger.
Under a new exception to the Copyright, Designs and Patents Act 1998, which comes into force on Wednesday, people will be allowed to re-use copyright material "for the purposes of parody, caricature or pastiche" without having to ask permission of the original author first.
There is an important caveat. If a parodist is taken to court, it will be up to a judge to decide whether the disputed parody is sufficiently funny.
In broad terms, parody imitates a work for humorous or satirical effect, commenting on the original work, its subject, author, style, or some other target.
Leaving aside the fact that judges tend to be somewhat advanced in years, and are therefore likely to have a very different idea from young creative artists of what "funny" means, there is also the point that this narrow definition excludes a huge class of mashups that aren't even intended to be funny, just creative. As Mike pointed out recently in his article on Kutiman, it's all too easy for this brilliant use of elements taken from elsewhere to be seen as "infringing." The fact that the UK's exceptions do not permit such kinds of originality shows how much its new copyright is still stuck in the past.
The argument against the warrant itself is solid. FOIAed emails show internal discussions between the Peoria PD and the Mayor's office, one of which includes the Chief of Police himself saying there are no laws being broken.
Mayor/Manager, I reviewed this matter with Detective Feehan. He is in the process of shutting down the account as you saw from my last email. This phony Twitter account does not constitute a criminal violation in that no threats are made. I'm not sure if it would support a civil suit for defamation of character. I'm not an expert in the civil arena but my recollection is that public officials have very limited protection from defamation. I asked (Feehan) about identity theft and he advised it did not qualify because the statute requires the use of personal identifying information such as a social security number, DOB, etc., and a financial gain form (sic) the use of that information.
Shortly after the raid and the ensuing debacle, the prosecutor dropped the (admittedly) bogus charges against Daniel.
Peoria County State’s Attorney Jerry Brady decided the offender must commit false personation in person. Using that reasoning, he didn’t charge Jon Daniel, the creator of the parody account, who also lived at the house.
This is the argument being used by Elliott's legal rep. If no crime was committed -- and the statute used to secure the warrant not applicable -- then the warrant should be thrown out, along with anything discovered during the raid.
But the judge doesn't see it that way. He says the police had "probable cause," even if the probable cause was (to put it nicely) misinformed.
Keith’s ruling means police had to reasonably think they would find items related to the parody Twitter account such as phones, flash drives, computers or similar things in Elliott’s bed or closet.
This is stuff the police did find. But the officers also looked under Elliott's pillows and in his closet. Judge Keith still wants them to answer for that.
Peoria police officers will testify Oct. 8 to explain why they looked under Elliott’s pillow and in a closet in his room, where police said they found the drugs in a gift bag.
As for the underlying cause being premised on a law that didn't say what police (and Mayor Ardis) wanted it to say, Judge Keith is less decisive.
Elliott’s attorney, Dan O’Day, sought to have the warrant declared invalid, arguing that police made a mistake and that anything found in the house should be thrown out of court.
Keith said he couldn’t make such a finding. He said the law was vague, and there was no case law that could guide judges on what legislators meant when they wrote the law.
But the prosecutor could make that decision, without the intercession of legislators or case law. He simply found that the law did not apply to Daniel's Twitter account and dropped the charges. Keith seems to be unable to wrap his mind around the fact that a warrant served to seize items and detain someone for not committing a crime is inherently flawed. That this was all uncovered after the raid took place does not excuse actions directed and led by a police chief and detective who admitted in emails that they knew the law didn't apply.
The "probable cause" was bogus from the start. The officers' actions in Elliott's bedroom aren't relevant because the whole search was a farce predicated on a deliberate misreading of a statute. The warrant may as well have stated it was seeking evidence of "harboring office supplies" or "manufacturing sandwiches without a license" for all the legal force it actually had behind it. While the warrant application lists "cocaine, heroin and drug paraphernalia" as things "reasonably" believed to be on the premises (no specific mention of marijuana or any other drugs, however), the statute clearly stated as the motivating force is False Personation, which doesn't cover Jon Daniel's Twitter account.
The police went after a Twitter account holder who had violated no laws and netted themselves a drug bust. The fact is, the police had no right to enter the premises in the first place and certainly shouldn't benefit from items seized that had nothing to do with the electronics (or other items) specified in the warrant application.
Under the European Copyright Directive, Member States may bring in an exception to copyright that allows works to be used without consent for the purposes of caricature, parody or pastiche. Following a long-drawn-out process, the UK will be doing exactly that, with effect from October 1. But a new judgment from Europe's highest court, the Court of Justice of the European Union, has added a new limitation to the parody exception (pdf). Here's the background to the case, as explained by the court's press release:
At a reception held by the [Belgian] city of Ghent to celebrate the New Year, Mr Deckmyn, a member of the Vlaams Belang (a Flemish political party), handed out calendars for the year 2011. The cover page of those calendars featured a drawing which resembled that appearing on the cover of one of the Suske en Wiske -- known in English as Spike and Suzy -- comic books with the original title 'De Wilde Weldoener' (which may be rendered as 'The compulsive benefactor'), produced in 1961 by Willy Vandersteen. The original drawing represented an allegorical character in the series wearing a white tunic and surrounded by people trying to pick to pick up the coins he was scattering all around. In the drawing appearing on Mr Deckmyn's calendars, that character was replaced by the mayor of the city of Ghent, while the people picking up the coins were replaced by people wearing veils and people of colour.
Several of Vandersteen's heirs and other holders of the rights to the comic book series brought an action against Deckmyn and the organization that financed the Vlaams Belang, claiming copyright infringement. These last two said that the calendar was satire, and therefore was covered by the EU's parody exception. The copyright holders asserted that parody must display originality, and that anyway the drawing conveyed a discriminatory message. Faced by all these claims, the Court of Appeal in Brussels asked the EU Court of Justice to clarify the conditions that a work must fulfill in order to be classified as parody. Here's the good news from the EU court's decision:
A parody need not display an original character of its own, other than that of displaying noticeable differences with respect to the original work
But there's less-good news in the form of this additional comment:
The Court notes that the application of the exception for parody, established by the directive, must strike a fair balance between, on the one hand, the interests and rights of authors and other rightsholders and, on the other, the freedom of expression of the person who wishes to rely on that exception. In that context, the Court declares that, if a parody conveys a discriminatory message (for example, by replacing the original characters with people wearing veils and people of colour), the holders of the rights to the work parodied have, in principle, a legitimate interest in ensuring that their work is not associated with such a message.
As is usual, the EU Court of Justice has passed the case back to the original Belgian court to apply its judgment. The latter will have to decide whether the parody in this case does indeed convey a discriminatory message, and whether the copyright holders can therefore require that the work is not "associated with such a message" -- which presumably means that they can insist that it is not distributed.
What's problematic here is that, by its very nature, parody is pushing the boundaries of good taste; it's quite likely to use images that upset some people, and that are maybe borderline discriminatory in some way (whatever that means). The risk is that the rather vague ruling from the European court will encourage more legal action to be taken against works of parody, and for social and political commentary to suffer as a result.
from the 'because-we-all-thought-we-were-doing-the-right-thing' dept
Back in April, humble Peoria, Illinois, made national news when its mayor and police department combined forces to shut down a parody Twitter account. The account, named after Mayor Jim Ardis, sent out a few days worth of sex-and-drugs tweets, something that very obviously would not have come from a mayor's actual Twitter account (exception: Rob Ford).
This very public display of stupidity may cost the City of Peoria, along with the many other defendants named in the lawsuit filed on behalf of the Twitter account owner (Jon Daniel) by the ACLU. Obviously, the First Amendment was all but forgotten in the mayor's quest to make this account -- one that was only seen by Mayor Jim Ardis and a handful of others -- disappear.
Defendants admit that from March 9 through March 19, 2014, Plaintiff tweeted from a twitter account, @peoriamayor, which used a picture of Defendant Ardis, the mayor of Peoria, as the account’s avatar. Defendants further admit that they pursued available legal means to shut down the account and to identify and pursue legal action against its creator. Defendants deny that they embarked on a plan to violate Plaintiff’s constitutional rights. Defendants admit that, after obtaining appropriate warrants, Peoria Police Department officers searched Plaintiff’s residence and seized certain of his personal property, and imaged certain personal information as a result. Defendants deny that they arrested, detained and interrogated Plaintiff for the crime of false personation of a public official.
While there's no record that indicates the defendants "embarked on a plan" to violate Daniel's First Amendment rights, his rights were violated all the same. But the last sentence skirts the edges of plausibility. While it's true that the police never issued an arrest warrant for the charge of false personation, it did use that charge to obtain a search warrant of Jon Daniel's home. Daniel was picked up by the police and questioned about his involvement with the Twitter account, but he was never truly arrested. Instead, he was detained -- the sort of thing that can turn indefinite while simultaneously freeing the police from having to file any possibly damning paperwork. So, the first part ("arrest") didn't happen. But the last two ("detained," "interrogated") did.
The claim that the city used "legal means" to pursue the Twitter user is also dodgy. While all the appropriate paperwork was indeed legal, the charge under which they were acquired was bogus, as became completely apparent when the State's Attorney's office refused to prosecute.
While still in full denial mode, the city also takes issue with certain characterizations made by the plaintiff.
28. On March 20, 2014, Ardis and the City, in a letter to Twitter written by the Interim Corporation Counsel for the City, threatened to file a federal lawsuit seeking an injunction against Twitter to terminate the Twitter account. Twitter suspended the Twitter account that same day.
ANSWER: Defendants admit the allegations contained in paragraph 28, except Defendants deny the characterization of the letter as “threatening.”
A letter that informs a party that efforts will escalate if cooperation isn't forthcoming is, by definition, a "threatening" letter. There's no way around it. The only way the city counsel's letter wouldn't have been threatening is if it hadn't been written at all. The defendants may not like the characterization (which, it should be noted, is a characterization the plaintiff never makes in the allegations), but that's an inarguable point. Friendly letters don't contain warnings about potential legal actions.
Further on, the city's lawyers attempt to deny the plaintiff felt the way he claims to have felt.
At the police station, Mr. Daniel was told he had to take everything out of his pockets before entering an interrogation room. Mr. Daniel emptied the contents of his pockets, which included his cellular telephone, and placed the items on a chair in the station. He was then taken into an interrogation room. Mr. Daniel reasonably believed he was not free to leave the interrogation room or the police station.
ANSWER: Defendants admit the allegations contained in paragraph 37, except Defendants deny Plaintiff’s characterization of the interview room as an interrogation room, and further deny that Plaintiff reasonably believed he was not free to leave when he was at the police station.
I'm not sure how a defendant can claim a plaintiff is wrong about their beliefs. We're not talking about creation vs. evolution or round earth vs. flat earth but whether Daniel felt he could just get up and walk out of the interrogation/interview room. Most people -- many of them "reasonable" -- feel that being detained by police officers only ends when the officers say it ends. They may be able to force the issue by asking (repeatedly) "Am I free to go?" but it's a nearly universal feeling that one does not simply leave an interview room -- especially when a police officer or two are standing in it.
Not only is it a terrible claim to make in general, but it's an awful thing to say in a court document. This is the City of Peoria telling the judge that it knows how Daniel felt when he was detained and he didn't feel the way he says he felt in his allegations. That's a pretty audacious statement even if it is the sort of thing that routinely graces defendants' response filings.
And, finally, the city asks everyone to trust that it hasn't dug through the contents of the numerous electronic devices that were seized.
Defendants deny that Defendant Hughes searched Plaintiff’s electronic devices. Defendants admit that Defendant Feehan imaged Plaintiff’s cell phone, and that other electronic devices which may have belonged to Plaintiff may also have been imaged for subsequent review by detectives, but state affirmatively that the State’s Attorney’s Office indicated it would not be pursuing charges against Plaintiff before any such data was reviewed and that, as a result, it was determined that the data would not be reviewed.
First off, we're expected to believe no searching occurred (or will occur) despite the fact that the electronics were imaged by the Peoria police. At the very latest, the police secured warrants to search the electronics by April 17th. It wasn't until April 23rd that it was announced that the State Attorney was dropping the charges. That's nearly an entire week. (Daniel's phone -- seized during his "interview" with the Peoria PD -- wasn't returned until May 2nd, and only after he non-threateningly threatened legal action.) The investigation was still open during the intervening six days and the police had secured warrants, so it seems highly unlikely no one took at look at the data obtained. And unless someone specifies otherwise during the course of this lawsuit, the police still have the imaged content.
The denials are followed by a three-page list of affirmative defenses that states the rest of the defendants are either entitled to qualified immunity or not directly liable for these actions. The most ridiculous claim here is that shutting down a parody Twitter account (one that was marked as a parody before most of the legal action took place) wasn't a violation of Daniel's First Amendment rights.
With regard to Plaintiff’s First Amendment claim, Defendants have qualified immunity from liability for the damages claimed by Plaintiff because Defendants did not violate any clearly established constitutional rights of which a reasonable person would have known.
So, the city's lawyers feel Jon Daniel "reasonably" should have known he could just walk out of a police interview room at any time, but that shutting down a Twitter account and searching a house for electronics related to it wasn't the sort of thing that any "reasonable person" might find to be a violation of their First Amendment rights.
I realize a lot of this is just normal defensive legalese, but it doesn't make some of these assertions any less ridiculous, especially considering the events leading to this litigation -- namely, a mayor's offense at a clearly parodic Twitter account culminating in the seizure of every electronic device in Daniel's house. The fact that internal emails show that the police knew they had no solid legal footing to pursue this case is going to hurt the city's claims that everything about this debacle was lawful and reasonable.