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.
Do you really think the judge is going to give two snaps about taking the guy's wife prisoner on her own front lawn?
It is bad form to assume the judge is evil because he issued a bad order. Judges follow specific rules about the facts presented to them. In this case, the judge's order was not completely out of line, if you accept the "national security" arguments. And again, we know that those are bullshit, but he did not and cannot assume bad faith.
However, lawyers have an ethical obligation to be truthful (for a certain value of truthful). That's what allows the whole system to work. If a lawyer starts lying to a judge, the judge has incredible powers to make him pay for it.
It's not really a judge's job to be an expert in everything. I mean, do you also insist that a judge must be a doctor before hearing health-related cases? They have to take the evidence that's presented to them.
Andreas Schou (who is incidentally a lawyer in Idaho) said that he has a good opinion of this judge, overall. It's just that the lawyers from Battelle misled him about technical details, and also presented "facts" that were not actually true.
Lawyers being misleading is not exactly news. This is supposed to be solved by having two sides to the case, so if one side tries to go full bullshit the other can call them out. Of course this was an ex parte order, which means there was only one side, which means it's open season.
The other issue is factual misrepresentations. Judges do not like being lied to. The lawyers here might get a little slack by claiming "we had no way to know it was already on GitHub", but they also might run afoul of willful blindness or some other bad-faith charge. For example, did they even try to contact Southfork/Thuen before petitioning the court? If so, why wasn't that communication submitted with the complaint?
While technically true, I find it very upsetting that the government can offer legal immunity to a private entity if it "voluntarily" acts to enforce a law, and then claim that such enforcement is not subject to Constitutional oversight. I'm not sure the matter has actually been decided in court - if you know of such a case, please post it for us. I would hope that the courts would show the same skepticism.
Re: Re: Not every lawsuit against the TSA is valid
The defense would like to offer three counterarguments, any one of which should exculpate him:
1) Typos are common in online fora. Typos are particularly common on TechDirt, which does not allow editing of material once submitted. This should not be considered any more meaningful.
2) Notwithstanding the validity of (1), names are not a foolproof indicator of gender. Many common names are unisex, and many names commonly associated with a given gender are nonetheless held by people of the opposite gender. "Joan" could easily be male.
3) Notwithstanding the validity of (1) or (2), the defendant may not have bothered to read the judges name, and instead focus on his (or her) legal order.
So basically, despite a law saying they have to pony up certain information when requested to do so, they actually don't...
I'm guessing you haven't actually read the FOIA? It says they have to give you the information, unless it falls under one of the listed exceptions.
For example, classified documents are an exception. This is why I can't request all documents relating to the US nuclear arsenal. I think you'd agree that those documents really really should be exempt from the FOIA?
The TSA invoked one of the exceptions. That's what the whole "SSI" thing is about. This judge can't rule on their SSI claim - it's outside her jurisdiction - and correctly tossed this case.
Look, I dislike the TSA as much as the next guy who isn't feeding from their trough. But that doesn't mean that every lawsuit against them is valid and deserves to succeed. Here's some interesting points you may have missed:
1) This lawsuit was filed 'pro se', meaning the guy is his own lawyer. That's a bad sign, especially considering how many free law services (like the ACLU) exist who would love to take the down TSA.
2) The original civil claims were dismissed in a previous order. What's left is a bunch of whining about how annoying their FOIA response is. Certainly the TSA treats FOIA requests with the same respect it gives a disabled traveler (i.e. none), but they have to really screw up to be liable in court. Given that Corbett did get the documents and footage, eventually, there's not much left to do.
3) The TSA was not sued for claiming video footage didn't exist. The county aviation department was, and they did so on orders from the TSA. This is an important detail. The county was following orders, and is clearly not liable. The TSA might be, except they reversed position and allowed the release a few weeks later.
Ultimately, this boils down to the TSA's authority to withhold arbitrary information via the magic "SSI" stamp. If they have that authority, then they're allowed to claim something doesn't exist, because the existence of information is itself information (or as the NSA would call it, "metadata"). As the judge correctly points out, he doesn't have jurisdiction over SSI issues. He can't override an SSI label.
The TSA is a sucking money pit that I can only tolerate because I'm lucky enough to be healthy, white, and middle-class. But this lawsuit is garbage, and does not deserve any publicity.