Sadly the First Amendment doesn't apply here - this is a matter between private citizens (and companies). The government isn't involved. Even though "copyright" is being invoked, YouTube's policies are different from federal law, and this is technically not a legal issue. (Yet.)
That said, SLAPP might still apply. I might also look at laws involving fraud: Bornstein used false information to take down the video. Unfortunately, this is unlikely to get anywhere because West would have to show actual harm - he can't exactly sue for damages if he hasn't lost any money.
Honestly, his best bet is to trick Bornstein into uploading his video somewhere, and then sue him for copyright infringement. You don't need to suffer any damage for that!
I wonder what would happen if some Verizon tech "accidentally" installed and connected another 4 ports. If they don't have the hardware already on site, they certainly have it back in a warehouse somewhere.
Sure, he'd probably get fired, but imagine the PR dance Verizon would have to do to explain how all the congestion magically disappeared.
If any private company tried these arguments, they'd be thrown out of court so fast the doors would fall off. Only the feds can point to another court ruling, say "golly gee it's too hard to do both of these at once", and get away with it.
If every single reporter could figure it out, and pretty much every other person could
I don't think that's how it works. Reporters should put more effort into investigating a site than your average reader, otherwise they might end up publishing an article about Google's new products (which are actually parodies). That all these reporters figured it out in no way proves that a reasonable person - who is otherwise uninformed on the topic - would instantly be able to determine it was a parody.
Redacted Blog is crap and you're bad for reposting it
Not because of anything they wrote. I wouldn't know; I haven't bothered to read any of it. They might be tireless freedom fighters for all that is right and good, for all I know.
But nothing - nothing - excuses them from publishing a graph whose y-axis doesn't start at 0.
Humans are visual creatures. Anyone looking at that graph gets the idea that exemptions have more than doubled from 2011 to 2012. Of course the actual numbers show only a 40% increase - still bad, but not quite as frothing-at-the-mouth-rage-inducing as implied.
On the one hand, yes. But there's no algorithmic way to establish fair use. (As far as I know - if you have a way to do so, please tell me.) And in many cases, the uploaders don't actually care about the incidental audio. So arguing fair use to keep it in just isn't worth the trouble.
If I understand this correctly, YouTube is providing a simple tool to remove minor portions of audio. Uploaders can use this tool when they decide it's easier than fighting over the 2 seconds of some pop song in the background.
And ultimately, this will lead to the removal of ContentID audio from all kinds of videos. Where before musicians had free advertising, and had people expressing their cultural tastes, now there will just be quiet. The few who are smart enough to not monetize or takedown will be the real winners.
Not exactly; there are a few subtle legal differences. (I agree that the DMCA process is bad, but there are levels of bad.)
The DMCA involves immunity from liability. If a content provider (like YouTube) receives a DMCA takedown notice, they are free to ignore it. This does not violate any laws. All it does is allow the copyright owner to sue them - and the content provider could still win the lawsuit and suffer no penalty (aside from legal fees).
In contrast, a court issuing a mandatory injunction is a legally binding order. If YouTube ignored it, they are guilty of breaking the law. Not accused; guilty. If this happens the judges can throw people in jail and levy all sorts of fines, completely at whim, without any right to trial or any real chance of appeal. And they will, because judges do not like being played.
When a judge tells you to do something, you do it. If you think it's wrong, you file a protest and then you do it anyways. YouTube is huge, wealthy company with very good lawyers, and this is what they did. That should tell you something. Next to that, the DMCA is nothing more than a polite suggestion.
I think she has received death threats over her appearance in this video. That counts as "harm". (Unless you want to claim that she's not harmed until someone actually murders her, but that seems to not fit with current law. Plus it's kind of cruel.)
"Copyright issue" and "first amendment issue" are hardly mutually exclusive. Just because you assert that you have a copyright claim doesn't mean you actually do. You might be lying, mistaken (contract law is tricky), or I might have a valid Fair Use argument.
Consider what happens when the courts issue a mandatory injunction order that I take down the allegedly offending material, before ruling on the copyright issue. If I later prevail in the case, then I get to repost the material - and the courts will have stifled my completely legal speech. That's exactly what the First Amendment is supposed to protect against.
There's a very good reason why precedent from the 9th Circuit (and several others) gives a very high bar for this kind of injunction. Precedent that last week's order completely ignored. I can't see it not being overturned; even if Google ultimately loses the case, the order is wrong on so many levels it's hard to even comprehend.
I mean, we haven't even gotten to the part where this was only an appeal, and should have been remanded back to the district court...
Google is saying that actors, actresses and artists don't have the right to order takedowns of the content they either appear in
That is entirely the point. If you star in a movie, and later wish you hadn't, tough luck. You don't get to go around ordering people scrub the bad movie from existence.
Google has said nothing about "retain the ownership or copyright to", because it doesn't think those cases apply. Garcia clearly doesn't "own" the movie, and her copyright claim is absurdly far-fetched. And even if it wasn't, she still has to prove that claim before demanding a takedown; you generally don't get a mandatory injunction just by filing a claim.
Re: The (unfortunate) big difference between public and private employment
And who makes that decision? Whoever it is now has the power to fire whoever he wants. I'm all for firing public employees when they deserve it, but there needs to be enough checks and balances to make sure it's actually deserved, and not just office politics or a personal vendetta.
Note that anti-discrimination laws do apply in the private sector; you can't appeal, but you can sue. It would be nice if we could apply the full protections to private employment, but that gets a little more tricky, both morally and practically. The key difference is that the public sector is "us", and we as a whole get to decide how it works; this doesn't hold for private business.
This kind of network attack only really affects major players like Google. Sites like Slashdot or Dailykos or Harvard are either single-homed (all in one datacenter), or communicate through known insecure lines.
The reason this attack was so effective against Google is that Google owns the fiber connecting its major datacenters. So Google assumed those links were inherently secure, and didn't encrypt the traffic. Clearly this was wrong. To Google's credit, they started encrypting these links earlier this year.
It's pointless if they end up causing a big PR mess, losing the case, and having to pay fees and damages to Mr. Thuen. If the lawyers knew the code was already on GitHub, they would not have filed for the restraining order; they'd have gone straight to the jury trial. That's where the real pain is anyway.
You're claiming the guy's house was on an international border?
No, I was giving a well-known example of an exception to the 4th Amendment. I apologize for not being clear about that.
You don't think “being detained” is anything serious.
I'm sorry if I gave that impression, because that is not at all true. I think being detained is a very serious thing. I just don't think illegal detention plays a part in this story.
Full disclosure: I am one of the people who submitted this story. (I suspect someone else did a better write-up, since I sent in the link with this account.) I know Andreas Schou, and I have access to other information from his perspective. (beyond what is publicly posted).
So with that said, no one involved in the story is claiming that the judge acted unconstitutionally, or that the order was in any way illegal. It was wrong, it was based on misleading and/or false information, and I very much hope that Corey Thuen is justly compensated for his trouble. But it was not illegal.
As for how the judge is going to play it, I'll defer to the original G+ thread:
Andreas Schou Oct 17, 2013
I've known Judge Winmill since I was a kid; his daughter was in the class right below mine. And I've never heard anyone in the Idaho bar say a negative word about him.
I think he may have just got rolled here on a technical issue (and a term of art, 'hacker,' which has negative implications to laypeople) which was not adequately explained to him.
My understanding is that you usually have to show subjective bad faith to get someone for perjury in cases like this. That's basically impossible unless you can find documents that show the lawyers discussing how they're going to lie to the court. I'm sure there's also a possibility to show complete gross incompetence, but that's probably even harder to stick.
IANAL, but I suspect that the "information and belief" line sets a low bar for how accurate the claims have to be. That is, if the lawyers can keep a straight face while claiming that they didn't realize the source code was on GitHub, they might be able to avoid misconduct charges. (It's entirely possible that they really didn't realize this; I'm more inclined to believe incompetence on their part than pointless malice.)
That said, Battelle probably isn't getting their bond money back and may end up owing Southfork/Thuen attorney's fees, if not actual damages.
I am pleased to see that you share a common viewpoint with myself, and indeed with the editors of this site and the majority of its readers. It is always pleasant to have another voice in the fight against overreaching copyright law and innovation-stifling legal threats.
That said, you appear to be BATSHIT CRAZY and need to CHILL OUT.
Among the signs of your complete mental breakdown: - Uncontrollable use of EMPHASIS by CAPSLOCK. - Unusual and (inconsistent) punctuation.. - Forming complete sentences or paragraphs. FAILURE. - Inability to express a coherent idea. - Repeated top-level posts within 10 minutes. - Rampant mispelings.
Please seek help. If a licensed therapist or English teacher is not available, there are many online resources that may also be of assistance.
I look forward to reading (and understanding) your posts at a later date. - Khaim
You realize there are already tons of exceptions to the 4th Amendment? I mean, try crossing a border some time. (Note that being within 100 miles of a border counts.)
Also, the judge did not authorize taking prisoners. It's unclear exactly what "held" means in this context, but if you bother to read the order there is no mention of imprisoning anyone. Nor was Thuen's property permanently seized; the order was for them to take his computer, copy it, and then immediately give it back. And despite Andreas' language, I don't think they actually broke down his door. (I could be wrong about that, I should ask him.)
The order was bad, and both the judge and lawyers are (hopefully) going to be held responsible. But don't try to make up evils; if you start lying about what happened, you're no better than the idiot lawyers who started this whole mess.