The story of this morning's live "on air" shooting of a local TV news reporter in Virginia is horrifying on many, many levels. Like with many senseless killings, there are all sorts of "big questions" being raised, most of which aren't really appropriate Techdirt fodder, though I'm sure those of you interested in those things can find other outlets for them. However, one tangential story fits right into Techdirt's core areas of focus: apparently two BBC reporters who were covering the police pursuit of the apparent shooter (who then shot himself) were forced by police to delete their own camera footage. This is illegal. I don't know how many times it needs to be repeated. Even the DOJ has somewhat forcefully reminded police that they have no right to stop anyone from photographing or videotaping things, so long as they're not interfering with an investigation. And yet...
Two BBC reporters covering the police pursuit of Vester Lee Flanagan said that cops threatened to seize their car and camera if they didn't delete footage of site where the Flanagan shot himself. "Was too far away to get any good footage. One officer threatened to tow my car and take my camera," reporter Franz Strasser tweeted. "Watched me delete my one file, and let me go. Other officer apologized and said we have to understand." His colleague, Tara McKelvey, filmed the encounter.
It appears that the cops used the same bullshit excuse we've seen them use in the past: that it's "evidence."
Officer Clark says: "that could be evidence and seized." He was telling us about our camera. The suspect is reported dead.
As has been noted before, this is a clear violation of Constitutional rights, and the BBC and the reporters in question could file a civil suit against the police department, potentially winning a fair amount of taxpayer money because the police in Virginia are apparently unfamiliar with the First Amendment of the Constitution.
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.
from the 90-of-which-failed-to-find-their-targets dept
Late last year, we discussed an investigation of several Cleveland police officers after a high-speed pursuit involving over 60 squad cars and 100 officers culminated in officers unloading 137 bullets in the direction of the stopped vehicle -- 47 of which found homes in the two suspects, who were both killed. One officer -- Michael Brelo -- fired 49 rounds in a little over 20 seconds.
In all, the investigation by the state found that 64 officers violated orders, but none of these officers received anything longer than a 10-day suspension. Two supervisors were demoted and one was fired.
This whole debacle was set off by a couple of perception errors. Some officers thought they heard a gunshot and others thought an officer had been injured. This was all the "evidence" the officers needed to justify mounting a by-any-means-necessary takedown of the two suspects. 137 bullets later, the officers searched the vehicle, recovering exactly zero weapons, bullets or casings.
Nearly eight months later, a grand jury has returned charges against six of the officers. Five of the officers -- all supervisors -- are facing misdemeanor charges of dereliction of duty. Officer Brelo, the cop who single handedly delivered over a third of the 137 bullets, will be facing something more severe.
The Cuyahoga County Grand Jury today voted to indict Cleveland Police Patrol Officer Michael Brelo on two counts of Manslaughter for the killing of Timothy Russell and Malissa Williams on November 29, 2012.
Under Ohio Revised Code Section 2903.03, Manslaughter is a felony of the first degree, carrying a mandatory prison sentence of from three to 11 years.
The prosecutor's statement further details Brelo's actions.
After more than 100 shots were fired at Mr. Russell's car, it was trapped by police cruisers in a narrow lane and came to a full stop.
All officers at the scene saw fit to cease fire.
Then Officer Brelo started shooting again and fired at least 15 shots, including fatal shots, downward through the windshield into the victims at close range as he stood on the hood of Mr. Russell's car.
You can see Brelo's "heroics" in the State Attorney General's computerized "reenactment," based on evidence gathered. Starting about the 1:00 mark, you can see Brelo move closer to the suspects' vehicle (and across a squad car, apparently), before finally standing directly on the hood and firing down through the suspects' windshield.
The state prosecutor notes that the Supreme Court recently upheld the right of police officers to use deadly (read [in most cases]: "excessive") force to end pursuits that possibly endanger officers or citizens. (More on that here.) But he points out that this situation was not one of those.
The law does not allow for a stop-and-shoot...
Let's be clear what happened here:
The driver was fully stopped. Escape was no longer even a remote possibility. The flight was over. The public was no longer in danger because the car was surrounded by police cars and 23 police officers in a schoolyard safely removed from pedestrians and traffic.
The primary danger facing the police at this time was from themselves, if they continued to shoot at each other in the circular firing squad they had inadvertently formed.
After the ceasefire, Officer Brelo unleashed an unlawful, second barrage of shots.
The ultimate legal issue is whether the police officer was justified when he stood on the hood of Mr. Russell's car and emptied his clip into the occupants after the chance of flight was completely eliminated and they no longer presented a threat to the public's safety.
He was not.
The statement also calls out the dereliction of duty by police supervisors, who allowed a petty criminal to dictate the actions of a large percentage of Cleveland's police force that night, rather than seizing control of the situation themselves. The officers themselves aren't blameless, even those who didn't contribute to the hail of gunfire. Based on little more than a sound heard by a couple of officers (which may have been a backfire), dozens of cops bought into a narrative that armed and dangerous suspects were on the loose and may have (no one seemed to have been interested in confirming this) injured an officer.
The prosecutor notes the grand jury no-billed murder charges against Officer Brelo. Murder charges would be excessive, but manslaughter completely undersells Brelo's actions. After all, the vehicle was barricaded and every officer had ceased fire before he jumped up on the hood and ensured the two suspects were completely dead by unloading his weapon at point-blank range through the windshield.
Also noted by the prosecutor is the difficulty investigators had reconstructing the events, thanks to the Cleveland Police Department's lack of dashcams. Why these are still missing from its vehicles after decades of near-universal use by police departments nationwide is a true mystery, especially considering this fact:
The cost of investigating this shooting by the Attorney General, the Cleveland Police Department and the Grand Jury will exceed the cost of purchasing dash cams.
There's no conceivable reason for any law enforcement agency to be lacking this equipment. The only reasons verge on inconceivable, most of which can be traced back to a reluctance to be held accountable.
Attention readers of this article! This is important to realize: I do not hate guns, the NRA, or freedom. While this is not the forum for any of us to discuss our personal philosophy regarding firearms or the 2nd amendment, let's just say my views are nuanced and leave it at that. Again, I do not hate guns. What I do hate, however, is hypocrisy and stupidity, and the NRA has a habit of occasionally engaging in both. I mean, the idea that doctors should by law not be allowed to ask questions about gun safety in "well-child" visits is just stubborn silliness. That kind of paranoia should be reserved for the lunatic fringe, not the most powerful firearms lobbying group in the country. Likewise, the insane idea that the 2nd amendment should be protected by treading upon the 1st and 4th amendments isn't just hypocritical, it's multiplicatively hypocritical.
There have been a lot of people blaming violent video games for gun violence in America, especially in the wake of the tragic Newtown, Connecticut shootings. Chief among them, of course, was the National Rifle Association. In his comments after the shootings, NRA CEO Wayne LaPierre blamed several video games that featured guns, like Bulletstorm and Splatterhouse, but left off titles like NRA: Varmint Hunter and NRA: Gun Club. He also failed to mention the new NRA branded iOS game which must have been in development at the time, NRA: Practice Range. The new game is recommended for ages four and up, probably because they don't want kids younger than four to see how much fun super-cool guns can be.
Now, in the interest of being fair here, there's an obvious difference in content between games like Bulletstorm and Practice Range or Varmint Hunter. The NRA isn't putting out games in which human being are shot. But that's a rather weak distinction to draw when you've spoken out so radioactively against violence in gaming. The simple glorification of guns for 4 years olds is probably not the best move PR-wise in the current atmosphere, but even having an NRA sponsored game for shooting animals raises questions. The line on shooting living things is crossed and it would be quite easy to point to harming animals as a predictive sign of criminality, violence and sociopathy. Why is the NRA providing a gaming avenue for such behavior while decrying other/more violent games for providing a gaming avenue for that same behavior?
It should be pointed out that, true to their words, the NRA is littering these games with gun safety tips, but from the standpoint of public relations that doesn't really soften how dumb a move this is. To be clear, I don't think the stupidity is in releasing these games. I'm fine with them. The problem is when you seek to deflect criticism for gun violence by pointing to games, all while you're also releasing shooting games, you lose a great deal of credibility. But when you put forth a game that gives you "one minute to fire off as many rounds as possible" and aims it, by their own words, at children as young as four years old, you just look like jackasses.
The tragedy last week in Connecticut is still horrifying to think about on many different levels -- but the constant search for blame, and using it to support pet political ideas is troubling. This isn't to say that we don't necessarily need to have a "conversation" on various hot potato political issues, but basing it around an event like this isn't likely to be a productive and informed conversation, but one driven purely by emotions. I understand the desire, and the idea that making use of such a tragedy to create political will to do something, is all too tempting. But I fear what happens when we legislate around emotions, rather than reality. And, no I'm not even going to touch the question of gun control or mental health treatment. Both obviously evoke strong opinions from people on all sides of the issue (and, contrary to popular opinion, there are more than two sides to those issues). Instead, let's talk about the rush to blame video games and TV shows, as seems to happen every single time there's a mass shooting -- and almost always done with no evidence.
We already talked about people rushing to blame a video game, after the incorrectly named "original" suspect in the shootings had, possibly, at some point "liked" the game on Facebook. But, of course, now the politicians are stepping in, and retiring Senator Joe Lieberman is using the tragedy to push forth one of his pet ideas that he's brought up in the past: violent video games and TV must have something to do with it. He's trying to set up a commission to "scrutinize" "the role that violent video games and movies might play in shootings" among other things (yes, including gun control and mental health care).
Lieberman, not surprisingly, was not the only one. A large group of politicians and pundits immediately jumped to the conclusion that video games and movies must have something to do with all of this:
A disturbing number of public figures have lashed out at video games since the atrocity committed at Sandy Hook Elementary on Friday. A bipartisan group of legislators embraced this scapegoating on the Sunday news programs; from Democrats like Sen. Joe Lieberman and Gov. John Hickenlooper to Rep. Jason Chaffetz and former Pennsylvania Gov. Tom Ridge.
They were joined by members of the media – sadly, too many to count.
On MSNBC on Monday, Chris Jansing asked her guests what connection Adam Lanza’s interest in video games had to his murderous shooting spree. She quoted senior White House advisor David Axelrod who tweeted “shouldn’t we also quit marketing murder as a game?” Liberal contributor Goldie Taylor revealed that she refused to let her child play games until he was 14-years-old.
On Fox & Friends on Monday, legal analyst Peter Johnson Jr. delivered an offensively sermonizing renunciation of entertainment producers and videogame makers who are “clinging to guns economically.”
“They are glamorizing guns in this country. They are the scourge in terms of these guns,” Johnson Jr. said of game and filmmakers
Of course, time and time again when these shootings happen, the reports later show... that video games and movies played little to no role. Yes, sometimes the killers played these games, but it's difficult to find teenagers these days who have not played a violent video game or watched a violent movie. It's like saying that we should explore "the role that breakfast plays" in such shootings. How many of the killers ate breakfast that day? In fact, studies seem to suggest that, if anything, violent movies may actually decrease incidents of violence.
Bizarrely, the person with the most thoughtful explanation on some of this might be movie critic Roger Ebert, in a review of Gus Van Sant's movie Elephant from nearly a decade ago. That movie portrayed a similar school shooting, and did so by making it clear that sometimes there are no answers and there is no "other thing" to blame. Sometimes (perhaps many times) these things don't make sense, no matter how many times we want them to make sense. But Ebert also points to another factor that rarely gets discussed:
Let me tell you a story. The day after Columbine, I was interviewed for the Tom Brokaw news program. The reporter had been assigned a theory and was seeking sound bites to support it. "Wouldn't you say," she asked, "that killings like this are influenced by violent movies?" No, I said, I wouldn't say that. "But what about 'Basketball Diaries'?" she asked. "Doesn't that have a scene of a boy walking into a school with a machine gun?" The obscure 1995 Leonardo Di Caprio movie did indeed have a brief fantasy scene of that nature, I said, but the movie failed at the box office (it grossed only $2.5 million), and it's unlikely the Columbine killers saw it.
The reporter looked disappointed, so I offered her my theory. "Events like this," I said, "if they are influenced by anything, are influenced by news programs like your own. When an unbalanced kid walks into a school and starts shooting, it becomes a major media event. Cable news drops ordinary programming and goes around the clock with it. The story is assigned a logo and a theme song; these two kids were packaged as the Trench Coat Mafia. The message is clear to other disturbed kids around the country: If I shoot up my school, I can be famous. The TV will talk about nothing else but me. Experts will try to figure out what I was thinking. The kids and teachers at school will see they shouldn't have messed with me. I'll go out in a blaze of glory."
In short, I said, events like Columbine are influenced far less by violent movies than by CNN, the NBC Nightly News and all the other news media, who glorify the killers in the guise of "explaining" them. I commended the policy at the Sun-Times, where our editor said the paper would no longer feature school killings on Page 1. The reporter thanked me and turned off the camera. Of course the interview was never used. They found plenty of talking heads to condemn violent movies, and everybody was happy.
Meanwhile, Danah Boyd has a related, but somewhat different perspective on the whole thing, noting how the media frenzy around these events also tends to mess with everyone else who are trying to cope with the situation, and makes sure their lives can never go back to any semblance of normalcy. She talks about running into some kids who had gone to Columbine high school, a few months after those attacks:
What I heard was heartbreaking. They had dropped out of school because the insanity from the press proved to be too much to deal with. They talked about not being able to answer the phone – which would ring all day and night – because the press always wanted to talk. They talked about being hounded by press wherever they went. All they wanted was to be let alone. So they dropped out of school which they said was fine because it was so close to the end of the year and everything was chaos and no one noticed.
As she notes, it's not the press's fault either. They're also giving the public what they want -- and, she agrees, that some of these topics are important and should be discussed. But the focus on the people in Newtown isn't helping.
But please, please, please… can we leave the poor people of Newtown alone? Can we not shove microphones into the faces of distraught children? Can we stop hovering like buzzards waiting for the fresh meat of gossipy details? Can we let the parents of the deceased choose when and where they want to engage with the public to tell their story? Can we let the community have some dignity in their grief rather than turning them and their lives into a spectacle of mourning?
Yes, the media are the ones engaging in these practices. But the reason that they’re doing so is because we – the public – are gawking at the public displays of pain. Our collective fascination with tragedy means that we encourage media practices that rub salt into people’s wounds, all for the most salacious story. And worse, our social media practices mean that the media creators are tracking the kinds of stories that are forwarded. And my hunch is that people are forwarding precisely those salacious stories, even if to critique the practices (such as the interviews of children).
What happened last week was senseless and tragic and painful to think about in all sorts of ways. And, yes, there are reasons to hope that such an event might lead to ideas that would prevent such things in the future, but the way we go about things on such discussions doesn't provide much hope that we're going to do anything valuable or thoughtful in response. Instead, it becomes a rush to do something purely out of an emotional response, and it's unclear how that helps.
We live in a litigious society. That's not a secret. So it's no surprise that, in the aftermath of the Aurora, Colorado Batman shootings, lawsuits will be filed. But as always the question is: who do you sue? Well, if the linked TMZ article is accurate, Torrence Brown Jr., who was in the theater, but not directly injured (though a friend of his was killed), has lawyered up, hiring an attorney named Donald Karpel to sue Warner Bros. for making the movie too violent. He's also apparently planning to sue the theater for not properly guarding the emergency exit, which is apparently where Holmes left and re-entered with the weapons. Oh yeah, and the doctors of shooter James Holmes for not properly monitoring him.
This certainly seems like a frivolous lawsuit. Going after Warner Bros.? For what? That's likely to get laughed out of court. This seems like a clear case of a "Steve Dallas lawsuit," named for the famous Bloom County comic strip in which lawyer Steve Dallas gets beat up by Sean Penn after trying to take a photograph of the star. He then explains why the proper target of a lawsuit is not Sean Penn, but the "Nikolta Camera" company, because "a major corporation with gobs of liquid cash ... was criminally negligent in not putting stickers on their camera which read, 'warning: physical injury may result from photographing psychopathic Hollywood hotheads."
Like many people, I was absolutely horrified by the story over the weekend concerning the shooting in Arizona that has left a bunch of folks dead and left US Rep. Gabrielle Giffords in extremely serious condition in a hospital. At the same time, for many years, I've been disgusted by the nature of political discourse, which often seems to involve petty name calling and ridiculous hyperbole (on all sides of the debate) usually based on association, rather than any actual position. It's one of the reasons that we almost always try to avoid naming political parties on this site -- because we seem to get knee-jerk reactions to the party that someone is a member of, rather than a response to the actual positions. That said, I'm troubled by the fact that many people have immediately jumped to the conclusion that the shooting was somehow caused by that ridiculous level of hyperbolic discourse, despite little evidence to support that. So far, almost everything said has suggested that the shooter, Jared Lee Loughner, was an immensely troubled individual, whose views were all over the map, rather than tied to any particular prevailing viewpoint.
So I'm troubled by reports that the quick, knee-jerk reaction from some politicians following the shooting is to pass laws to restrict forms of speech, especially the exceptionally vague plan of Rep. Louise Slaughter to "better police language on the airwaves." Don't get me wrong: even if this shooting had nothing whatsoever to do with the level of political rhetoric and childish bickering we see everyday in Congress and among the chattering pundits, it would be great if the end result were to lead to more reasoned debate, rather than ridiculous hysterics and blatant overstatement and exaggeration. But passing laws are not the way to do that. Telling people what they can and cannot say is not going to fix the level of discourse in American politics today. Outlawing certain forms of speech on the airwaves will not stop crazy people from shooting others.
Are there crazy people out there? Absolutely. Is the level of political discourse in this country somewhat ridiculous and often counterproductive? Almost certainly. Are those two things connected? That seems like a huge stretch, with many people jumping to some unproven and unsubstantiated conclusions, leading to knee-jerk responses that limit speech based on nothing but an unproven hunch. That's not the way law making is supposed to work. And isn't making unfounded accusations against your political oppoents to try to squeeze some political advantage from such a tragedy just compounding the hysteria already present in the debate? Why not start by setting a good example, rather than threatening to force everyone else to shut up?
sinsi alerts us to a bizarre lawsuit in Australia where shooting victim Michael Trkulja is suing Google, claiming the search engine has some liability for his getting shot. The reasoning? Apparently searches on his name would take you to pages suggesting that Trkulja was involved in organized crime operations. It doesn't appear that he has any other info linking his shooting to this particular webpage or to the fact that the shooter may have done a Google search. It also does not appear (at least from the article here) that the guy is blaming the website in question -- just Google for leading people to it. Not sure what sorts of laws there are in Australia concerning such liability, but it's hard to think of a scenario under which this lawsuit should make sense under any legal system.
from the maybe-time-to-hang-up-the-microphone dept
I recognize that NPR news analyst Daniel Schorr is well into his tenth decade of life, and plays the role of the "senior statesman of journalism" on NPR at times, but as a bunch of folks have sent in, he seems to have totally lost it with his recent piece suggesting the internet should share some of the blame for the Ft. Hood shootings done by Maj. Nidal Hasan. The reason? Hasan apparently communicated via email with an "extremist cleric" whom he had met years ago (in person) at a mosque in Northern Virginia. One wonders if they had corresponded by telephone, if Schorr would be questioning if AT&T was to blame. Or, if by pen and paper, if Bic was at fault. Of course, Schorr doesn't even know what was in the emails sent between the two, so his speculation is based on even less than nothing. However, even if his worst fears are true, and the cleric somehow pushed Hasan to carry out his attack, the fault remains with Hasan, and potentially the cleric. Not the internet.
Every so often, I get wrong number phone calls (one of my numbers is apparently listed in a LensCrafters book of other stores, so I get calls from LensCrafter stores asking if I've got things in stock). It's not that difficult to say "you have a wrong number" and everyone goes on their merry way. Apparently, not for some. In Georgia, someone accidentally dialed a wrong number, and it resulted in someone getting shot. Apparently, following the wrong number, angry phone calls and texts were exchanged between the two guys, before they agreed to meet in a drug store parking lot, where one of them got shot (and the other got arrested). The story doesn't indicate who dialed the wrong number first, but, seriously, would it have been that hard to have just said, "hey, wrong number" and left it at that?