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.
from the because-you-can't-know-how-low-you'll-sink-until-you-try dept
Late last month, some audacious pranksters (or possibly ultra-dangerous individuals) snuck to the top of the Brooklyn Bridge's two towers and replaced the American flags with the universal symbol for surrender: white flags. Or to be more specific, bleached-white American flags.
If you can't read/see the tweet, it's sent from @BicycleLobby and says the following:
Earlier today we hoisted two white flags to signal our complete surrender of the Brooklyn Bridge bicycle path to pedestrians.
The New York Daily News fell for it. More surprisingly, the Associated Press did as well, infecting an untold number of local outlets with its automated breaking news feed. In their hurry to be proven fools, the Daily News and the AP ignored both a) EVERY TWEET EVER MADE BY THE ACCOUNT and b) the second line of the account's profile.
An all-powerful enterprise. Parody account.
The parody account heaped more scorn on the two news agencies, suggesting they google "Dorothy Rabinowitz," the inspiration for the account. Rabinowitz, a Wall Street Journal editorial board member, once famously said, "The bike lobby is an all-powerful enterprise," as she attempted to protect average New Yorkers from the two-wheeled menace that was "begriming" upscale neighborhoods with "blazing blue Citi Bank bikes."
Manhattan District Attorney Cyrus Vance’s office has issued a subpoena for information about the Twitter account @BicycleLobby.
The anonymous, satirical account announced Friday that the company Twitter had received a summons to appear before a grand jury against John Doe defendant in a criminal investigation.
“On Monday, Twitter alerted this account that it had received a subpoena from the office of the District Attorney of the County of New York,” the account tweeted Friday afternoon — clarifying that it was being “100%” serious about the legal notice.
It's the real deal (embedded below). The straight-faced subpoena demands that Twitter turn over:
Any and all records including but not limited to account opening documents, user Contact information (subscriber information, including email addresses, billing information, associated telephone numbers), Group Contact information, and all available IP logs for the Twitter account(s) associated with the following…
If Twitter fails to do so, it may be facing "imprisonment for one year." The subpoena also warns Twitter against notifying the end user:
Pursuant to 18 USC § 2705(b), this Court orders Twitter not to notify or otherwise disclose the existence or execution of this subpoena/order to any associated user/accountholder, until the conclusion of this investigation or otherwise by court order.
If Twitter didn't just shrug this off, then it's likely the investigation has concluded or the court has rescinded its order. The subpoena went out on July 23rd and the account holder was notified August 4th. The person behind the parody account has retained legal assistance, not that he or she should actually need it. The NYPD's investigative "technique" apparently consists of grabbing as much data as possible (surveillance, cell tower dumps, "DNA," parody Twitter accounts) and running it through some sort of angsty, terrorism-fueled centrifuge until either a) discretionary spending is increased for counterterrorism units or b) the actual culprit outs him or herself by walking into the police station, dripping with blood flag bleach and shouting "DETECTIVE!" until someone starts paying attention.
Cops were similarly stumped, although they hoped some answers might come from the quintet caught on blurry video crossing the bridge about 20 minutes before the tower lights went out and the flags were stolen around 3:30 a.m…
The graveyard-shift cops who missed the trespassers jumping a locked gate, scaling the two towers and hanging the bleached flags will not be disciplined, police sources told The News.
The answer, of course, is to add more cameras to the exact spot where something has already happened. Someone "inside the police department" posited that it could have been a dry run for a terrorist attack, and the response has been a lot of barn-door kicking and the hassling of any other person who might cross the Brooklyn Bridge on foot during the early hours of the morning.
This clumsy fear-driven thinking is only exacerbated by willing accomplices like the NY Daily News -- the same entity so quick to claim a parody Twitter account did it -- which rushed out this reductio ad absurdum headline the next morning:
That's how the NYPD ends up throwing more cameras at the same spot the previous cameras captured the flag-switchers at work, as though more unwatched eyes will somehow prevent an attack. And that's how a local judge signs off on a subpoena ordering Twitter to hand over user data on a clearly parodic Twitter account -- one that has also claimed to have faked the moon landing. If our main "weapon" in the War on Terror is "swift and disproportionate" reaction, no wonder everyone in the intel community believes we're "losing."
You used to be able to watch it on YouTube, where it had racked up nearly three million views before this happened.
Apparently, Warner Bros. Entertainment took issue with the use of the theme song and the inclusion of the two Lego Movie characters (seen briefly near the end of the 90-second video) and issued a takedown. Whether or not you agree with Greenpeace's complaint, there's no denying the fact that its use of the theme song and very brief use of these characters is clearly parodic fair use.
Greenpeace has now moved the video to Vimeo, where it will possibly receive a stronger fair use defense from the hosting company, although still in the form of "oblige takedown request first, investigate later." It may work a little harder to defend this one up front, considering all the viewers that were heading to YouTube to catch Greenpeace's new viral video are now landing on its doorstep.
Warner Bros.' action here isn't exactly censorship (as it probably was agnostic about the video's message) but it's not exactly forgivable either. Seeing as this video probably didn't trigger an automated takedown by YouTube's content-matching system, it was most likely the result of an active search for infringement, which means whoever's policing content for WB ignored everything but the song and the brief appearance of its Lego Movie characters. Once again, digital shouts of "MINE!" trump fair use.
Eight students there spent the spring quarter writing, rehearsing, and preparing to perform publicly an original musical theater production entitled “The Quisney Project presents: O.U.T.: Once Upon a Time.” Informed by queer theory, the work is a critical and political commentary on heterosexuality norms in American society. Professors were involved in supervising and approving the project, which was scheduled to be performed this weekend in campus facilities...
The students’ musical production apparently incorporates several Disney songs, which the students use to criticize and parody Disney as – in their view – a company that perpetuates gender norms through its songs and movies.
So far, so good. But before it could get off the ground and without anyone but the administration scaring the hell out of itself with visions of white-gloved lawyers delivering complaints to federal courthouses, the school informed the troupe that, yes, it could put on a show, but there was no way Evergreen College would assist in that endeavor.
Evergreen State College’s administration was supportive of the project initially. However, after consulting with a state attorney, the administration apparently changed its tune, writing the students in late May to advise them that the musical could not be performed on college property in its present form. Their concern? Potential secondary liability for copyright infringement.
Whereas the U.S. Supreme Court concluded in Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994) that 2 Live Crew’s song “Pretty Woman” did not infringe Acuff-Rose’s copyright of “Oh Pretty Woman” and did constitute fair use because the parody commented on and substantially transformed the meaning of the original;
Whereas fair use is determined on a case-by-case basis;
Whereas in making determinations of fair use, the relevant provision of federal copyright law (17 U.S.C. §107) instructs us to consider:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and; the effect of the use upon the potential market for or value of the copyrighted work.
Whereas fair use in educational settings is wider in scope than in commercial settings such as that addressed in Campbell v. Acuff-Rose;
Whereas the students who wrote the script, as well as the faculty who reviewed it, concur that in its use of parody “The Quisney Project presents: O.U.T.: Once Upon a Time” significantly alters the meaning of original melodies and lyrics, and offers critical commentary upon the original...
The musical would seem to be on solid ground, or at least as solid as fair use can ever be. But Evergreen, despite never having heard from the feared rights holder, much less consulted with anyone specializing in IP law (the State Attorney? Really?), stood firm, distancing itself as far as possible from members of its student body.
We therefore insist that the performance cannot go forward as it has been planned to date. There are alternatives to a public, on-campus performance of the script as we have it. These have been discussed with most of you, but none, so far as we know, adopted. We cannot allow college staff time or resources of any kind to be dedicated to the performances planned for this week. This includes any recording, publication, or broadcast by college staff.
As we have stated consistently, our decision is determined solely by copyright concerns and should in no way be taken as a negative judgment on the artistic and academic merit of the play or on the work of the Quisney Project.
It may not be a negative judgement on the content, but it's a very cowardly move. Backing down from actual legal threats is one thing. Scaring yourself into conceding before the battle lines are even drawn is just ridiculous. Disney's thuggish rep precedes it and it's getting compliance without even asking.
As the WLA post shows, the show's songs and content have substantial fair use protection built in. But if a college is willing to drop back and punt on first down just because it's heard of Disney suing infringers, it sends the message that it's unwilling to put up a fight to protect fair use in other academic arenas as well.
Evergreen should have thrown its support behind the program. Given the subject matter, any legal action taken by Disney would appear to be more motivated by stifling criticism than protecting IP rights. That would have been a lose-lose move and one it most likely would never have attempted. But now we'll never know because Evergreen College surrendered preemptively.
from the at-rock-bottom-but-still-working-that-shovel dept
Peoria mayor Jim Ardis has responded to the ACLU's announcement of its lawsuit against him (and several others) over the actions taken to shut down a parodic Twitter account. Ardis' "press conference" was really nothing more than him reading a prepared statement and refusing to answer any questions.
His statement shovels blame on the media, complains about having his "identity stolen" and goes long on pointing out that the Twitter account (or "site," as he prefers to call it) was not clearly marked as a parody at its inception. But the highlight by far is Mayor Ardis reading some of the tweets delivered by the account.
Ardis still seems to think he's completely right, but nearly everything he states is wrong.
First off, while the account wasn't marked as a parody when it first went live (March 9th), it had been by three days later (March 12th). Despite this, the mayor and the police continued their hunt of the account's owner. This hunt continued even after they managed to convince Twitter to suspend the account (March 20th).
Ardis repeats the claim that the account wasn't marked as a parody, as though that makes the entire month of police activity past the point of the account's shutdown (and six weeks past the point the account was marked as a parody by Jon Daniel, the account's owner) completely appropriate. Separately, while the lack of being marked as parody for three days may have violated Twitter's terms of service, it has no real bearing on the fact that it's protected speech. Mayor Ardis seems to think that unless something is marked as parody, it's not parody. But the point that many people were making, was that anyone reading the crazy statements on the Twitter feed would recognize it as obvious parody for being so extreme. In fact, having Mayor Ardis read out some of the tweets only seems to confirm the point. What he thinks is so conclusive as evidence that he's right, really only seems to prove the opposite: that the account was making statements so extreme and ridiculous that they were clearly parody, and not real.
Ardis also attacks the media for misrepresenting the facts. That's very hard to do when you're quoting police reports and police department/mayor's office emails directly. Since day one, the media has portrayed this event as Mayor Jim Ardis abusing his power to shut down a Twitter account he didn't like -- a portrayal that is borne out by the documents obtained from public records requests.
He also claims the media is being hypocritical by claiming the account was harmless while simultaneously refusing to print the "offensive" content of the tweets. This is his stupidest assertion. A Twitter account that did nothing but tweet out repeated profanities would be harmless while still being something most journalistic entities wouldn't print verbatim. Arbitrary standards for print are not legal standards for obscenity.
Either way, just because many people may find the account's tweets highly distasteful (and probably wouldn't retweet @grandma, etc.), it still doesn't make the speech less protected or Mayor Jim Ardis any more "right" about pursuing the person behind the account. Once the account was marked as parody, such that it complied with Twitter's terms of service, that should have been the end of it.
[A]ccording to a source inside City Hall, the officials who aggressively pursued Daniel, the creator of the account, were also wrong in a much more mundane way: They thought I was behind @peoriamayor and assumed I worked for the local paper, the Journal Star...
In an email that was released because of a Freedom of Information Act request, Ardis asked his subordinates what “JS reporter” lived with Daniel, and a police official said he didn’t know. If the source in City Hall is correct, Ardis was convinced that reporter was me, and likely thought that by exposing me as the foul-mouthed fiend behind @peoriamayor he’d ruin my reputation as a journalist and that of the Journal Star in the process.
This adds a bit more background to the mayor's apparent disdain for the media. Glawe also points out that the braintrust behind the account shutdown not only seemed to have a poor grasp of the law (perhaps intentionally), but was also mystified by the technical aspects of dealing with an online social media platform.
At one point, some city officials and cops thought they could call Twitter to have @peoriamayor shut down, so it’s no surprise that they apparently couldn’t be bothered to google my name and find out who I was and whom I work for.
In related news, Peoria Police Chief Steve Stettingsgaard has stepped down to take a job with Caterpillar, Inc. While his entire tenure at the head of the PPD has been marked with controversy, there's no doubt this latest incident played a part in convincing him to exit the law enforcement business.
Bizarrely, Mayor Ardis hints he's looking at pursuing someone (Jon Daniel or possibly even Twitter itself) for "defamation," apparently forgetting the email conversation he had with Chief Stettingsgaard back on March 11th.
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.
If Ardis decides to pursue this, he'll just be adding to his list of highly-public debacles. His defensive press conference indicates he's unable and unwilling to learn from his mistakes. There's no case to be made here, especially if Ardis decides to go after Twitter itself for the actions of one of its users. But it appears Ardis has dignity to burn, even if most of it is riddled with self-inflicted wounds.