Appeals Court: It Is In The Public's Interest That Samsung Not Be Allowed To 'Slide To Unlock' Devices

from the wait,-what? dept

The patent fight between Apple and Samsung has been going on for many years now with Samsung being told to pay a lot of money to Apple. But on one point Apple has been unsuccessful: getting an injunction barring Samsung from offering products for sale that include the “infringing” inventions — such as the concept of “slide to unlock.” I still have trouble understanding how “slide to unlock” could possibly be patentable, but there it is: US Patent 8,046,721 on “unlocking a device by performing gestures on an unlock image.”

After bouncing around a bit, the question of the injunction landed at CAFC, the appeals court for the Federal Circuit — which is the appeals court that handles all patent case appeals. It’s also the court that has a pretty long history fucking up the patent system. Separately, some background on the whole injunction thing: for many years, it was believed that if you infringed on a patent, beyond monetary damages, courts would always award an injunction, blocking the manufacture or sale of the product without a license. This was based on the idea that patents give you an “exclusive right” and without an injunction — but just monetary damages — it could be (weakly) argued that this was a form of a compulsory license. That went out the window almost a decade ago when the Supreme Court, in the MercExchange case rightly pointed out that automatic injunctions are ridiculous and likely harm the public. The Supreme Court rightly found that an automatic injunction often went too far in hindering innovation and went against the public good.

In this case, the lower court denied Apple’s request for an injunction — pointing out (rightly so) that there’s no “irreparable harm” in letting Samsung “slide to unlock,” but CAFC disagrees and has sent it back to the district court to try again. The reasoning is… troubling, to say the least. It highlights, once again, how the judges on CAFC seem to be strongly influenced by the patent bar, and are so immersed in the world of patent lawyers that they’re completely disconnected from the real world. They even go so far as to directly claim that an injunction better serves the public interest. Yes, removing a product so the public can no longer get it — even if it’s a good product and people want it — somehow serves the public good… “because intellectual property.”

Indeed, the public interest strongly favors an injunction. Samsung is correct?the public often benefits from healthy competition. However, the public generally does not benefit when that competition comes at the expense of a patentee?s investment-backed property right. To conclude otherwise would suggest that this factor weighs against an injunction in every case, when the opposite is generally true. We base this conclusion not only on the Patent Act?s statutory right to exclude, which derives from the Constitution, but also on the importance of the patent system in encouraging innovation. Injunctions are vital to this system. As a result, the public interest nearly always weighs in favor of protecting property rights in the absence of countervailing factors, especially when the patentee practices his inventions.

This is circular reasoning at best. What’s funny is that CAFC briefly gets at the truth in noticing that, in most cases, an injunction will work against the public interest, and finds that truth so distasteful to its love of the patent system, that it says it must obviously be false. Yikes. But the reasoning here is tautological. The argument, when parsed out is basically “patents encourage innovation” -> “patents allow injunctions” -> “injunctions must be in the public interest.” But that’s wrong, because it falsely assumes that patents actually do encourage innovation or that patents themselves are, absolutely, in the public interest. There are some cases where they likely are, and many cases where they likely are not. To automatically assume injunctions must be in the public interest is just wrong.

There’s also a long discussion about whether or not people were actually buying Samsung devices because of “slide to unlock,” which seems pretty ridiculous, but the court actually thinks there are people out there who chose Samsung over the iPhone because of slide to unlock. CAFC sets up a ridiculous standard on that front, first saying that because it would be difficult to show that slide to unlock was the key reason that people bought a Samsung phone, it’s okay to show that there is “some connection between the patented features and the demand for Samsung’s product.” But that standard is ridiculously low. And it allows the following analysis that basically says “because Samsung liked slide to unlock, it must be important.”

The record here establishes that these features do influence consumers? perceptions of and desire for these products. The district court wrote that there was evidence that Samsung valued the infringing features, including evidence that Samsung ?paid close attention to, and tried to incorporate, certain iPhone features,? which was ?indicative of copying.? … This included evidence that Samsung had copied the ?slide to unlock? feature claimed in the ?721 patent, such as ?internal Samsung documents showing that Samsung tried to create unlocking designs based on the iPhone,?

But that’s no standard at all. Under that standard, basically any infringement can be shown to have “some connection” to demand for the product. The court also does present a study — done by someone hired by Apple, of course — claiming that people wouldn’t have bought Samsung’s phone “without the infringing features,” but that seems pretty dodgy. I’d like to find a single real life person who looked at a Samsung Galaxy device and though “gee, I would have bought this if only it had slide to unlock.”

There’s a concurring opinion from Judge Jimmie Reyna, in which he argues — apparently with a straight face — that not granting an injunction could harm Apple’s reputation as an innovator. Really? Apple has a long-standing reputation as a very innovative company, but not based on its patents, but rather based on it taking many ideas (including many from others) and making much better, more desirable products out of them. Samsung coming out with copycat devices doesn’t strip away Apple’s reputation as an innovator, it enhances it, because everyone sees that Samsung is desperately trying to catch up to Apple.

Apple?s reputational injury is all the more important here because of the nature of Apple?s reputation, i.e., one of an innovator (as opposed to, e.g., a producer of low-cost goods). Consumers in the smartphone and tablet market seek out innovative features and are willing to pay a premium for them. Sometimes consumers in this market will even prioritize innovation over utility. A reputation as an innovator creates excitement for product launches and engenders brand loyalty. Samsung recognized the importance of such a reputation and set its sights not on developing more useful products, but rather to overcome the perception that it was a ?fast follower.?

There is a dissent from the Chief Judge of CAFC, Sharon Prost (who has appeared to be much more reasonable than many of her colleagues in decisions) saying that “this is not a close case,” and it’s bizarre that the others on the court believe an injunction is appropriate. As Prost rightly notes, these are really minor features we’re talking about and it’s absolutely crazy to argue that there’s irreparable harm if Samsung keeps using them.

This is not a close case. One of the Apple patents at issue covers a spelling correction feature not used by Apple. Two other patents relate to minor features (two out of many thousands) in Apple?s iPhone?linking a phone number in a document to a dialer, and unlocking the screen.

Prost slams her colleagues for the procedural way in which they claimed the lower court made a legal error, pointing out that the majority fails to actually explain what that legal error was. Then, she points out that the majority basically makes up evidence that isn’t actually in the record to support its position.

the majority?s ?carriers? or users? preference? theory was not mentioned at all by the district court. The majority asserts that ?[t]he district court acknowledged that Apple presented evidence that carriers (?721 patent) and users (?172 patent), not just Samsung, preferred and valued the infringing features and wanted them in Samsung phones.? … The majority again quotes nothing from the district court?s opinion to show there is such an acknowledgement. Again for good reason: there is nothing. As the majority notes just two sentences later, the district court ?failed to appreciate? that the evidence cited by Apple ?did not just demonstrate that Samsung valued the patented features, but also that its carriers or users valued the features.? Id. The district court could not have ?acknowledged? what it ?failed to appreciate.? The majority reaches its creative interpretation of the evidence to find ?carriers? or users? preference? all on its own.

Then she trashes the majority’s argument that because Samsung copied Apple’s features, it must be because those features were demanded by the market — and points out it’s especially ridiculous with one of the patents that Apple didn’t even use in the iPhone.

the majority states that ?[t]he district court wrote that there was evidence . . . ?indicative of copying.??…. The quotations upon which the majority relies, however, are not the district court?s findings. Rather, they are the district court?s recitation of Apple?s contentions, with which the district court disagreed. As the district court noted, ?[w]hile indicative of copying by Samsung, this evidence alone does not establish that the infringing features drove customer demand for Samsung?s smartphones and tablets.?…. The district court, of course, did not mean that Apple proved copying for all three patents-in-suit. As the district court noted, Apple did not practice or allege copying of the ?172 patent…. The district court also rejected Apple?s only support for its contention that it practiced the ?647 patent… (finding Apple?s only evidence of its own use ?did not directly equate asserted claim 9 of the ?647 patent with ?data detectors??). Without Apple practicing these patents, Samsung obviously could not have copied the patented features from Apple?s products.

Prost also notes that merely copying another’s product is not enough evidence:

This conclusion is contrary to our precedent. As the district court stated, ?the parties? subjective beliefs about what drives consumer demand are relevant to causal nexus, but do not independently satisfy the inquiry.?

Finally, Prost takes issue with the claim by the majority that it’s nearly automatic that an injunction is in the public interest, because “intellectual property.” As Prost points out (as we did above), that’s getting the issue totally mixed up in a tautological way:

I agree with the majority that the public?s interest in competition, without more, does not necessarily decide this factor against granting an injunction. But it does not follow that the public interest ?nearly always? favors granting an injunction as the majority states.

She goes on to cite the MercExchange case, detailing how when the patents only cover a tiny part of the product, it makes little sense to issue an injunction, and further noting that the issue of irreparable harm is totally separate from the question of the exclusive right in the patent itself. In other words, just because we have the patent system, it doesn’t automatically mean that injunctions are good, as the majority argued.

It will be interesting to see what happens next, but if this one goes back to the Supreme Court, it would seem like yet another opportunity for the Supreme Court to smack CAFC around for getting basic patent law wrong.

Filed Under: cafc, injunctions, patents, public interest, slide to unlock
Companies: apple, samsung

Appeals Court Gets It Right The Second Time: Actress Had No Copyright Interest In 'Innocence Of Muslims'

from the took-'em-long-enough dept

Phew. For quite some time now we’ve been following the curious case of Cindy Garcia, who by all accounts was duped into being an actress in a film that was eventually sorta/partially released on YouTube as “Innocence of Muslims” and was cited by some as causing violence around the globe (a claim that others dispute). Garcia, for perfectly good reasons, was not happy to be appearing in a controversial film that was entirely different than the film she thought she was in. However, she then tried to use copyright law to take the film down. This seemed laughable on its face, and the district court quickly dismissed it. To the surprise and horror of many, however, on appeal, the 9th Circuit, led by Judge Alex Kozinski, overturned widely settled law for decades and claimed that the copyright claim was valid and further ordered Google/YouTube to block every copy of the movie — which most people thought was a clear case of prior restraint against the First Amendment.

After some back and forth, the 9th Circuit agreed to rehear the case with a full slate of 11 judges (en banc). The case was heard late last year and just today, the 9th Circuit dissolved its previous ruling and is now upholding the district court ruling against Garcia. Judge Kozinski dissented, not surprisingly. Disclaimer: We filed an amicus brief in this case as well.

The ruling, written by Judge Margaret McKeown gets right to the point, copyright is not supposed to be used for outright censorship:

In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech. The appeal teaches a simple lesson?a weak copyright claim cannot justify censorship in the guise of authorship.

As pretty much everyone has noted, the court also points out that it’s sympathetic to the position that Garcia was put in by events out of her control. However, that is no excuse for abusing copyright law for the sake of censorship.

We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. Garcia?s theory can be likened to ?copyright cherry picking,? which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act. Putting aside the rhetoric of Hollywood hijinks and the dissent?s dramatics, this case must be decided on the law.

And, what that means is that Garcia has no copyright interest just because she appeared in the film. The court repeatedly notes (as did many others) that even the US Copyright Office denied Garcia’s attempt to copyright her performance. And, further, notes that if the court were to accept Garcia’s claim it would create quite a mess for copyright law:

Garcia?s theory of copyright law would result in the legal morass we warned against in Aalmuhammed?splintering a movie into many different ?works,? even in the absence of an independent fixation. Simply put, as Google claimed, it ?make[s] Swiss cheese of copyrights.?

Take, for example, films with a large cast?the proverbial ?cast of thousands??such as Ben-Hur or Lord of the Rings. The silent epic Ben-Hur advertised a cast of 125,000 people. In the Lord of the Rings trilogy, 20,000 extras tramped around Middle-Earth alongside Frodo Baggins (played by Elijah Wood). Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.

The court actually spends a lot of time on this, noting what a ridiculous situation it would make for the entire movie industry, which again raises serious questions about why the MPAA chose not to participate in this case.

Untangling the complex, difficult-to-access, and often phantom chain of title to tens, hundreds, or even thousands of standalone copyrights is a task that could tie the distribution chain in knots. And filming group scenes like a public parade, or the 1963 March on Washington, would pose a huge burden if each of the thousands of marchers could claim an independent copyright.

Even beyond the whole swiss cheese thing, the court rightly points out that copyright is given to those who “fix” the work in a tangible medium, and Garcia did, well, none of that:

Garcia?s copyright claim faces yet another statutory barrier: She never fixed her acting performance in a tangible medium, as required by 17 U.S.C. § 101 (?A work is ?fixed? in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.?) (emphasis added). According to the Supreme Court, ?the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.? …. Garcia did nothing of the sort.

For better or for worse, Youssef and his crew ?fixed? Garcia?s performance in the tangible medium, whether in physical film or in digital form. However one might characterize Garcia?s performance, she played no role in fixation. On top of this, Garcia claims that she never agreed to the film?s ultimate rendition or how she was portrayed in Innocence of Muslims, so she can hardly argue that the film or her cameo in it was fixed ?by or under [her] authority.?

Finally, even though it notes it does not need to, the court addresses the question of “irreparable harm” which was a key part of Kozinski’s original ruling. Here, the court rightly points out that, while Garcia may face harm, it’s not because of the copyright and abusing copyright law to protect against such harm is not what the law allows.

Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from?and incompatible with?copyright and copyright?s function as the engine of expression.

In broad terms, ?the protection of privacy is not a function of the copyright law. . . . To the contrary, the copyright law offers a limited monopoly to encourage ultimate public access to the creative work of the author.?

The court further cites cases such as Scientology abusing copyright to try to suppress a study and Hulk Hogan suing Gawker to suppress a sex tape, to show that, while many people seek to abuse copyright law in this manner, it is totally inappropriate.

And then there’s this:

Ultimately, Garcia would like to have her connection to the film forgotten and stripped from YouTube. Unfortunately for Garcia, such a ?right to be forgotten,? although recently affirmed by the Court of Justice for the European Union, is not recognized in the United States.

And, finally, the ruling smacks around the original injunction from Kozinski for its clear First Amendment problems:

The takedown order was unwarranted and incorrect as a matter of law, as we have explained above. It also gave short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film?based upon a dubious and unprecedented theory of copyright. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.

[….] The panel?s takedown order of a film of substantial interest to the public is a classic prior restraint of speech….. Prior restraints pose the ?most serious and the least tolerable infringement on First Amendment rights,?… and Garcia cannot overcome the historical and heavy presumption against such restraints with a thin copyright claim in a five-second performance.

Well done, 9th Circuit. Of course, it’s still bizarre it took you two tries to get it right.

There is a “concurring” opinion from Judge Paul Watford, in which he argues the majority decision went too far in making broad claims, and he would have preferred a more narrow (and less useful) ruling, focusing solely on the “irreparable harm” question and leaving aside the entire (important) question of whether or not Garcia had any copyright interest in the film. Thankfully, the majority of the panel did not agree with him.

And, finally, we get to Kozkinski’s panicked defense of his own original ruling:

Garcia?s dramatic performance met all of the requirements for copyright protection: It was copyrightable subject matter, it was original and it was fixed at the moment it was recorded. So what happened to the copyright? At times, the majority says that Garcia?s performance was not copyrightable at all. And at other times, it seems to say that Garcia just didn?t do enough to gain a copyright in the scene. Either way, the majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit.

Wait, what? The 9th Circuit is “the Hollywood Circuit?” I mean, sure, technically Hollywood is in the 9th Circuit, but…

In its haste to take internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them. I won?t be a party to it.

Kozinski is wrong. As most of the rest of the court and the Copyright Office and tons of copyright experts all seem to recognize, Garcia has no copyright interest in her performance. She did not fix it in a tangible medium. Kozinski goes on to argue that this ruling is what will create a true mess of copyright law:

The implications are daunting. If Garcia?s scene is not a work, then every take of every scene of, say, Lord of the Rings is not a work, and thus not protected by copyright, unless and until the clips become part of the final movie. If some dastardly crew member were to run off with a copy of the Battle of Morannon, the dastard would be free to display it for profit until it was made part of the final movie. And, of course, the take-outs, the alternative scenes, the special effects never used, all of those things would be fair game because none of these things would be ?works? under the majority?s definition. And what about a draft chapter of a novel? Is there no copyright in the draft chapter unless it gets included in the published book? Or if part of the draft gets included, is there no copyright in the rest of it?

I think the majority ruling does a damn good job responding to this point, by pointing out that it’s “moral outrage and colorful language” more than legal analysis:

The dissent spins speculative hypotheticals about copyright protection for book chapters, movie outtakes, baseball games, and Jimi Hendrix concerts. See Dissent at 35, 38. This hyperbole sounds a false alarm. Substituting moral outrage and colorful language for legal analysis, the dissent mixes and matches copyright concepts such as collective works, derivative works, the requirement of fixation, and sound recordings. The statutory definitions and their application counsel precision, not convolution.

All in all, while it’s ridiculous that we had to go through this in the first place, after quite some time, the court finally got it right, no matter what Kozinski has to say.

Filed Under: 9th circuit, alex kozinski, cindy garcia, copyright, free speech, injunctions, innocence of muslims, irreparable harm, prior restraint
Companies: google, youtube

Ferguson Police Arrest Yet Another Journalist, Ignoring Direct Court Orders

from the because-that's-how-they-roll-in-Ferguson dept

Back in the summer, we had a few stories about the police in Ferguson arresting reporters. In response to that, the police signed a court agreement promising not to interfere with the media — which they ignored the very same day. More recently, a court found that the “5 second rule” that police had made up as part of enforcing a “failure to disperse” law was unconstitutional, but it would appear that the police still don’t care.

Over the weekend, police in Ferguson arrested yet another journalist, Trey Yingst. The St. Louis County Police Department said he was arrested for (you guessed it) “failing to disperse” when commanded to do so. Specifically, the police say he was in the street and refused to leave.

@TreyYingst reporter from D.C. taken into custody for failure to disperse. Was asked to leave street by the commander and refused. #Ferguson

— St. Louis County PD (@stlcountypd) November 23, 2014

However, multiple eyewitnesses, including other reporters, dispute that claim and point out that he was on the sidewalk:

Police refused to say why reporter @TreyYingst of @news_2_share arrested In Ferguson. Was on sidewalk of S Florissant Rd along from the PD

— Jon Swaine (@jonswaine) November 23, 2014

Police arrested this man after he said he was a journalist standing on the side walk outside the ferguson police dept pic.twitter.com/AG46fMTyOv

— Alex Wroblewski (@alexwroblewski) November 23, 2014

This is false. He was on the sidewalk. #Ferguson https://t.co/VEOzCCWiq7

— Ryan J. Reilly (@ryanjreilly) November 23, 2014

Even worse, as Adam Steinbaugh points out, on Friday, there was a series of federal court orders telling the state, county and city police not to interfere with journalists doing reporting in Ferguson. According to the order [pdf], which covers the St. Louis County police:

IT IS HEREBY ORDERED that the [police] shall not enforce or threaten to enforce any rule, policy, or practice that grants law enforcement officers the authority or discretion to arrest, threaten to arrest, or interfere with any individual, including any member of the media or member of the public photographing or recording in public places unless that person is threatening the safety of others or physically interfering with the ability of law enforcement to perform their duties.

One of the other orders, directly targeting the County of St. Louis states [pdf]:

IT IS HEREBY ORDERED that Defendant County of St. Louis, Missouri, its officers, agents, servants, employees, attorneys, and all persons under their supervision, or within their control, are permanently enjoined from interfering with individuals who are photographing or recording at public places but who are not threatening the safety of others or physically interfering with the ability of law enforcement to perform their duties.

Of course, this is in Ferguson, Missouri, where people have been gathering all weekend to await the grand jury results concerning officer Darren Wilson, who shot and killed Mike Brown in August, setting off the widespread protests. And, in Ferguson, it seems that basic concepts in law no longer apply — even when courts directly call the police out on them. And, of course, officials in Ferguson have been especially obnoxious towards the press. Beyond just basic stonewalling and threatening/arresting multiple reporters, officials in Ferguson have tried to avoid releasing documents by putting ridiculous price tags on FOIA requests and even requesting a no fly zone to block out press aircraft (while pretending it was for “safety”). Is it really any wonder they’d continue to ignore direct court orders in order to harass and intimidate journalists?

Filed Under: arrests, court orders, ferguson, injunctions, journalists, missouri, police, st. louis county, trey yingst

Australian Government Proposes New Copyright Law: Basically Hollywood's Wishlist

from the australia's-sopa dept

We’ve been covering the discussion around copyright reform down in Australia for a while, and it’s continuing to get worse and worse. As you may recall, after a long and detailed process, involving careful input from a variety of stakeholders on all sides of the equation, the Australian Law Reform Commission (ALRC) came out with a set of proposals that were actually pretty good, including things like introducing fair use to Australia.

Of course, rather than pay attention to this detailed and thoughtful process, the current Attorney General, George Brandis, decided to only listen to Hollywood. This created quite a telling discussion when Senator Scott Ludlam asked Brandis if he had consulted any consumer rights groups or other copyright experts concerning his copyright plans, and Brandis refused to answer, instead getting angry and insisting that Hollywood’s interest is the public interest. Brandis also claimed — totally incorrectly — that Australia has no laws against online piracy and is “the worst offender of any country in the world when it comes to online piracy.” That’s simply bogus, and appears to just be a Hollywood talking point.

Given all that, it was fully expected that Brandis would basically obey Hollywood’s orders — especially given that the main discussions he’d been having came with the “Australian Screen Association,” which is a rebranded version of AFACT, which a Wikileaks State Department cable revealed was 100% controlled by Hollywood interests in the US.

And, indeed, Brandis has delivered his gift proposal to (or, should we say from?) Hollywood. It involves three main proposals, but the big one is overturning the important iiNet decision that highlighted that ISPs are protected from liability for users infringing, because they’re not the proactive party. In other words, under that ruling, ISPs can’t be forced to be copyright cops. Brandis’ plan would wipe that out, requiring ISPs to spy on user activity and try to block any “bad stuff” from happening, or they would face liability:

The Government believes that even where an ISP does not have a direct power to prevent a person from doing a particular infringing act, there may still be reasonable steps that can be taken by the ISP to discourage or reduce online copyright infringement.

Extending authorisation liability is essential to ensuring the existence of an effective legal framework that encourages industry cooperation and functions as originally intended, and is consistent with Australia’s international obligations.

“Extending authorization liability” sounds so polite. But what it really means is “making ISPs into copyright cops” and encouraging them to spy on and block all sorts of activity, legal or not, to avoid liability from massive copyright infringement lawsuits (like the one against iiNet). Also note the famous “consistent with international obligations” line. We’ve been saying for nearly a decade now, whenever anyone brings up “international obligations,” you know they’re being intellectually dishonest.

The second part of the proposal is basically Australia’s version of SOPA. It would allow for website blocking of “infringing overseas sites.” And it would be like the original SOPA, with a “private right of action,” allowing entire websites to be blocked on the say so of the copyright holder. A court would have to approve it, but it would likely be an incredibly one-sided hearing, as it’s unlikely foreign websites will travel to Australia.

A similar provision in Australian law could enable rights holders to take action to block access to a website offering infringing material without the need to establish that a particular ISP has authorised an infringement.

The final piece of the plan appears to be an attempt to buy off internet companies that are likely to oppose this plan, in that it extends safe harbor protections to more of them. Basically, this is a cynical ploy to try to split the obvious opposition of this plan. Without this, it would clearly be both internet companies and internet access providers (ISPs) opposing. But here the idea is that if they barely extend a few safe harbor protections to more internet companies, maybe those guys won’t oppose this effort as strongly.

Either way, this is pretty much what was expected. It’s an evidence-free proposal based on the fear mongering claims of Hollywood, and an attempt to turn ISPs into Hollywood’s personal copyright cops, spying on your usage and doing anything to block infringement, even if that also wipes out plenty of legitimate speech as well.

Thankfully, Senator Ludlam (who exposed Brandis’ unwillingness to even answer whether he met with consumer rights groups) has already spoken out about this proposal:

Such a move would unleash a wave of lawsuits as giant film and TV studios re-open legal action to try and get Australian ISPs to act as ?copyright police’ in penalising their customers for online copyright infringement.

The paper also discusses a range of other options for tackling the issue, including forcing ISPs to block websites, sending users warning notices, and even limiting the broadband connections of those who are only suspected of pirating content online.

What the discussion paper doesn’t contain is any attempt to address the real reason why Australians pirate films and TV shows online – the ongoing refusal of giant corporations to make their content available in an affordable and timely fashion.

Just getting access to watch HBO’s popular Game of Thrones show can cost Australians up to $50 a month – and the show is only available week by week from one source: pay TV giant Foxtel, which is co-owned by Telstra and Rupert Murdoch’s News Corp.

The Greens believe the Abbott Government is trying to protect an outdated dinosaur of a business model where a small group of mega-corporations control all access to the content Australians want to access. This isn’t a surprise, given the hundreds of thousands of dollars film and TV studios have recently donated to the Coalition.

Filed Under: australia, blocking, copyright, george brandis, injunctions, intermediary liability, safe harbors, scott ludlam

Copyright Lawyers Prime The Pump For The Return Of SOPA

from the because-of-course-they-would dept

Since the death of SOPA/PIPA two and a half years ago, Hollywood (and Congress) have tiptoed lightly over any proposed copyright reform, insisting that they’ve learned their lesson and that they won’t try to bring back SOPA. Of course, with the big comprehensive copyright reform effort going on in DC, you can totally expect that the legacy copyright industry will do its best to put in place the parts of SOPA that it most wanted. That process appears to have kicked off in earnest last week, with the IP Section of the American Bar Association releasing a White Paper entitled A Call For Action For Online Piracy And Counterfeiting Legislation. I should warn you that, according to the genius intellectual property experts at the ABA’s IP Section, clicking on that link may be a violation of their copyright. It’s not, of course, but that doesn’t stop them from claiming it is at the beginning of the paper:

© 2014 American Bar Association. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. For permission contact the ABA Copyrights & Contracts Department, copyright@americanbar.org or via fax at 312 988-6030, or complete the online form at www.americanbar.org/utility/reprint

Clicking on the link they put on their site would be “transmitting” the document by “electronic” means “without the prior written permission of the publisher,” even if you could argue that they gave another form of permission by posting the damn thing. Oh, and of course, by copying that little tidbit and posting it here, I have also violated the bogus rules claimed in that very snippet.

You’d think that the IP Section of the ABA would understand things like fair use and copyfraud, but apparently not. Anyway, the document itself weighs in at a hefty 133 pages, and you can go through the whole thing, but it’s basically setting the stage for trying to make internet companies copyright cops again, just as in SOPA. It talks up the problem of “Predatory Foreign Websites,” (PFWs — which is apparently the new nickname for “foreign rogue websites” that were the central focus of SOPA and PIPA. Then it talks about “intermediaries” (i.e., internet companies) and how those poor, poor Hollywood copyright lawyers can’t really go after those “PFWs” and the best thing to do is to… put the liability on the internet companies themselves. Because of course that’s been the plan all along: make Silicon Valley Hollywood’s private copyright cops, and if they don’t do a good job, fine ’em to hell.

First, it suggests that, even under existing law, courts could order internet companies to block infringing sites or activity under some unique, but barely tested, parts of the law. But, of course, it says this is not enough. It’s main recommendations are summarized as follows:

Supplement the following civil remedies (which are already available under U.S. law to redress piracy and/or counterfeiting that occurs within U.S. borders) to redress online piracy and counterfeiting undertaken by PFWs, in cases where the intermediary(y)(ies) in question does not taken action voluntarily:

1. injunctions directing financial payment processors to freeze the assets of PFWs and to cease doing business with such websites;
2. injunctions preventing online advertisers from paying PFWs or from displaying further ads on those websites;
3. injunctions requiring search engines to remove PFWs from paid, sponsored links;
4. injunctions requiring website hosts to cease hosting PFWs;
5. injunctions permitting the seizure and destruction of counterfeit or pirated goods, or their delivery to rightsholders who are willing to bear the shipping and handling costs;
6. injunctions requiring the immediate removal of pirated works and/or content, counterfeit marks, logos, insignia, or trade dress that have been made available, displayed, or otherwise promoted by PFWs; and
7. monetary damages in the form of disgorgement of profits of the PFWs achieved as a result of the illegal activity, which shall be paid to the rightsholder from the assets frozen or advertising/sponsored links revenue that had been withheld by the intermediaries as described in points 1-3 above.

In short: make internet companies kill copyright infringement — collateral damage, be damned.

It goes on to bring back the “private right of action” part of SOPA, which was so problematic and so egregious that even Lamar Smith dropped it midway through the process in the original SOPA fight, in an effort that he hoped would allow the rest of the bill to go through. A “private right of action” would basically let companies declare some website a “Predatory Foreign Website,” allowing them to then force internet companies to block them or take other actions against them, or risk significant liability. Basically, it’s a private right of censorship that the entertainment industry could use against innovative website they don’t like. While the paper admits that this was controversial in SOPA, it offers a modified “hybrid solution” that it thinks works better:

[T]he IPL Section recommends a hybrid solution, by which rightsholders would be allowed to seek direct remedies directly against PFWs (who would have notice and an opportunity to be heard, including as to any objection to being characterized as a PFW) and direct remedies against one or more of the U.S. intermediaries identified above. This provides full due process rights to the alleged PFW, both in cases where it is sued directly and in cases where its status as a PFW is critical to the issuance of an injunction against one or more of the intermediaries that it uses. Such a procedure is a little less convenient for rightsholders, but it allows the site itself the maximum due process to defend itself against both the onus of being labeled as a PFW (and resulting liability) and the cutoff of financial support from U.S. intermediaries.

See? No problem. If you’re running an innovative website out of, say, Malaysia, and a Hollywood studio declares you a “Predatory Foreign Website,” I’m sure you can just hop on the next flight to the US to defend yourself in court, right? Easy!

The paper then looks at “government” solutions, and praises ICE for its infamous domain seizure program, which we’ve reported on extensively. At least the paper acknowledges the fact that this program resulted in the seizure and censorship of perfectly legal websites like Dajaz1 and Rojadirecta for over a year, but brushes them off as not that big of a deal, beyond being a potential PR problem:

The circumstances surrounding Dajaz1 and rojadirecta.com have achieved a level of notoriety among Internet freedom and civil liberties advocates that far surpasses their significance. Such incidents are few in number relative to the amount of seizures overall

I’m curious how completely shutting down and censoring a popular internet publication and a widely used internet forum full of protected speech, both for over a year, without any legal basis whatsoever, could possibly lead to people overstating its significance. It seems like those situations have been completely understated in significance. If they had been, say, an actual newspaper, and the government had gone in and seized the printing presses for over a year, without a reason or any recourse, and then the government just returned the presses over a year later without anything as much as an “oops, sorry,” would people have just let it go, the way it happened with both of those other websites?

Besides, the ABA report conveniently leaves out that those weren’t the only domains that were seized in a faulty manner. There were at least two others I know of that protested the seizure on the same basis, but last I’d checked, the government was still holding onto both of those domains and simply refusing to respond to the lawyers associated with either site.

The one real concession the paper seems to make is that the DNS blocking provisions of SOPA and PIPA were probably a bad idea.

There’s much more in the paper, and it’s well worth reading, to get a sense of what the ABA IP Section (a lot of entertainment industry lawyers are in there) are thinking about how to get a SOPA-like law through in the future (probably during the comprehensive copyright reform effort). To be fair, the paper is fairly comprehensive in its thinking, and at least mentions people being opposed to its reasoning and why (it even cites Techdirt multiple times…). It also pays some lip service to actually paying attention to those concerns, but nearly all of the actual recommendations bring back SOPA-like ideas. It’s troubling to see that the overall lesson of SOPA was clearly not learned, and they’re clearly planning to try, try again.

Filed Under: copyright, injunctions, intermediary liability, pfws, predatory foreign websites, private right of action, rogue sites, third party liability

US Government Praises Italy For Implementing SOPA Features The US Public Vehemently Rejected

from the questions-to-ask dept

It’s no secret that the USTR has been pushing for copyright maximalist policies over the past few years (mostly done by a guy who recently went through the revolving door to become an MPAA lobbyist). However, one thing they keep claiming is that they’re only looking to get other countries to match existing US laws, rather than expand them. That’s clearly untrue if you look through the actual language being negotiated (only available via leaks). But, even so, it’s pretty clear that the USTR is pushing an extreme maximalist approach. Last week, it released its latest Special 301 report, in which it names which countries are “naughty” about intellectual property. “Naughty” is not defined by any objective standard. Rather, the USTR asks various industry lobbyists to tell them which countries they dislike the most, and the USTR rewrites it into the list. The Special 301 process has long been a complete joke that even many maximalists recognize as silly (we heard the former head of the US Copyright Office once mock it).

The latest version of the report is more of what we’ve come to expect in previous reports. China has been naughty. India and Spain have been called out of class for a special extra review. Blah blah blah. But, it also notes that both Italy and the Philippines were removed from the Watch List “in recognition of their intellectual property rights accomplishments.” Both countries have certainly become much more aggressive on copyrights recently — and they’ve done so by being a lot more aggressive than the US. In fact, as we’ve been reporting, Italy made a dangerous move to allow an administrative agency to issue censorship bans on websites without any judicial process. And, in fact, it’s already begun issuing questionable death sentences on sites, forcing ISPs to block access.

If this sounds like the approach originally considered in SOPA (actually, it’s going even further than that), that was then massively rejected by the public, you’d be exactly right. So you would think that the USTR would, perhaps, chastise Italy for such an abuse of intellectual property for censorship in a manner that the American public (who the USTR is supposed to represent) have rejected. But, nope. The USTR praises this very approach:

Italy is removed from the Watch List in the 2014 Special 301 Report in recognition of the Italian Communications Regulatory Authority’s (AGCOM) adoption, on December 12, 2013, of long-awaited regulations to combat copyright piracy over the Internet.

In other words, here you have the USTR basically admitting that it approves of countries moving to an approach even more extreme than SOPA. Of course, the reality here is pretty transparent. If Italy and others implement SOPA, down the road, it can be negotiated into various international agreements, so that the US will claim that it has to implement SOPA to “comply with our international obligations.” It’s been done before. That’s exactly how we got the DMCA. Congress initially rejected it, and so Bruce Lehman specifically went to WIPO to get the DMCA put into the 1996 Copyright Treaty… and, voila, two years later Congress said it had to pass the DMCA to comply with that treaty.

The USTR has long been a supporter of maximalist policies. Praising Italy for implementing an even more extreme version of SOPA just highlights how little concern the USTR has for the interests of the American public. Instead, it appears almost entirely focused on the interests of the most powerful lobbyists (who, not surprisingly, are also the USTR employees’ likely future employers).

Filed Under: agcom, censorship, copyright, injunctions, italy, sopa, ustr

Singapore Says 3 Strikes Is Too Intrusive For Copyright Reform, So Goes With SOPA-Style Censorship Instead

from the say-what-now? dept

I saw two headlines in a row recently about Singapore’s plans for copyright reform. The first one sounded good, and the second one sounded dreadful:

1. Singapore decides ‘three strikes’ laws are too intrusive
2. Singapore proposes law to block sites such as Pirate Bay

It turns out that both headlines are accurate, though it’s the second one that’s the bigger issue here. You can see the details laid out (quite clearly) by Singapore’s Ministry of Law. It notes that they currently have a DMCA-like notice-and-takedown setup, but have apparently decided that this is somehow too burdensome for rightsholders who have pushed the government to come up with an alternative plan (gee, this sounds familiar…). They don’t seem to explain why this is so burdensome, they just say that there’s too much “uncertainty” in having to actually “establish the liability for infringement.” So, rather than do that, it appears that the Singaporean government is willing to chuck basic due process, and go for flat-out censorship without due process.

Under the proposed legislative changes, rights holders will also be allowed to apply directly to the Courts for injunctions to prevent access to pirate sites without having to first establish ISPs’ liability for copyright infringement. This judicial process is more efficient and avoids implicating the ISPs unnecessarily.

So, just as in SOPA, the idea is that rightsholders can suddenly declare that certain sites are “rogue” and courts can agree to wipe them off the face of the internet, by ordering ISPs to block access to them. The Singaporean government insists this won’t be a problem for legitimate sites, because it seems to have bought into the Hollywood fallacy that what is a “legitimate” site and what is a “pirate” site are somehow obvious, rather than a spectrum in which nearly everything is some form of gray.

This is targeted at websites that show a blatant disregard for, and that clearly infringe, copyrights. Legitimate search engines and content sharing sites such as Google and YouTube will not be affected.

Notice how they just blithely insist that YouTube is legitimate. That may well be news to YouTube’s lawyers, who just concluded (via settlement) a seven-year battle in which Viacom literally insisted that YouTube was the equivalent of a video Grokster (the file sharing service that lost its court case for enabling infringement). And that’s where the real problem is. It’s easy to claim that it’s obvious when a site is legitimate and when it’s not, but reality doesn’t work that way. For years, many people were pretty sure that Napster was perfectly legitimate under the rules of the Sony Betamax ruling, but then a court decided otherwise. Similarly, many assumed that YouTube was illegal, until that case settled. Hell, even the VCR was a “pirate tool” until the Supreme Court ended that argument thirty years ago.

And, of course pretty much all of modern entertainment history is filled with similar examples of new innovations in the delivery and consumption of content that are at first deemed illegal, until suddenly they’re not. The player piano, the phonograph machine, radio, television, cable television, the photocopier, the DVR, the VCR, the mp3 player, and many other innovations were first decried as “pirate” technologies. And then they weren’t. But with the Singaporean government insisting that it’s somehow obvious which ones are legitimate and which ones are not, Singapore is almost guaranteeing that important legitimate innovations that help move the industry forward will, instead, get censored and blocked across the entire country.

That’s no way to present yourself as an innovative country.

So, yes, later in the document, they reject three strikes (and administrative, rather than judicial, blocking) as too draconian and intrusive:

Countries like Spain and Malaysia have implemented an administrative site-blocking approach where rights holders can apply for site-blocking orders from a Government-appointed body. Countries like France have introduced a “graduated response” system where individual internet users are notified of their infringing activity by the ISP, and can be penalised if they continue their infringing activity despite repeated notifications (or “warnings”).

We considered the alternatives above but assessed that they may not be suitable in Singapore’s context as they are too intrusive on internet users.

But, in many ways, the alternative “solution” that Singapore appears to be supporting is worse than three strikes. It’s outright censorship against innovation, based on a faulty belief that it will be immediately obvious whether or not new innovations and technologies are “legitimate” or “pirates.”

Filed Under: 3 strikes, censorship, copyright, injunctions, notice and takedown, singapore, sopa

EU Court Of Justice Makes Life Difficult For ISPs: Demand 'Balance' In Blocking Websites, But Incomplete Blocking May Lead To Liability

from the figure-that-one-out dept

While in the past, the EU Court of Justice has been more concerned about attempts to order ISPs to block access to entire websites over claims of infringement, late last year, we noted that the EUCJ’s Advocate General Pedro Cruz Villalon had suggested that it was okay to issue an injunction against an ISP — with some specific restrictions to try to limit the serious issue of overblocking. While the court will often follow the lead of the Advocate General, and the newly issued ruling does appear to reach the same final conclusions, it appears to have done so slightly different reasoning.

Either way, the key part is this:

The fundamental rights recognised by EU law must be interpreted as not precluding a court injunction prohibiting an internet service provider from allowing its customers access to a website placing protected subject-matter online without the agreement of the rightholders when that injunction does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures, provided that (i) the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right, that being a matter for the national authorities and courts to establish.

In other words, it appears that broader injunctions, which do not specify exactly what an ISP must do to block access, are allowed. However, ISPs themselves will then be responsible for “taking all reasonable measures” to block access, as long as those measures don’t block lawful content. That seems like kind of a huge mess for ISPs who will now have to deal with injunctions asking them to block stuff, where they’ll be required to show “reasonable measures” but will also need to balance that against blocking access to legitimate content. This decision seems to try to thread a needle, where the result is likely to be many new lawsuits as censorship injunctions are issued, and ISPs have to figure out how to balance the order without blocking access to legitimate content. It seems likely that many ISPs will opt for limiting their own liability by defaulting towards overblocking to avoid having to face challenges suggesting they didn’t take enough “reasonable measures.”

Filed Under: balance, blocking access, eu court of justice, injunctions, isps, liability

Innocence Of Muslims Actress Files Contempt Charges Against Google For Not Making Movie Completely Disappear Worldwide

from the well,-if-you've-already-fucked-up-copyright-law-in-one-way... dept

It would appear that actress Cindy Lee Garcia and her lawyer Chris Armenta are figuring that since they’ve already mucked up copyright law with their ridiculous victory in the 9th Circuit that they might as well go on pushing the boundaries of copyright law to further ridiculous extremes. If you don’t recall, the 9th Circuit, via Judge Alex Kozinski found the actress had a magical “copyright interest” in the 5 seconds of Innocence of Muslims 13-minute trailer that she appeared in, allowing her to demand that Google takedown every copy of the video. Multiple copyright experts were flabbergasted at this ruling, and a variety of folks have been lining up to support future proceedings in the case (starting with a possible en banc review of whether or not the court should grant a stay on the ruling until even more review can occur).

In the midst of this, Garcia has filed a motion for contempt against YouTube and Google arguing that the company has failed to abide by the takedown order. However, as the details show, Garcia and Armenta are applying some rather questionable interpretations of copyright law yet again — though they’re interpretations helped along by a bunch of additional problems with Kozinski’s order (problems that were mostly ignored given the immensity of the ridiculousness of the key parts of the original order). It seems that their main complaint is that Google only blocked the videos for people in the US. That is, if you visit a foreign version of YouTube, you can still see the clips. That may be true, but it’s hard to see how that’s contempt. US copyright law only applies in the US. The US court can’t realistically order Google to remove the video in other countries, since US courts don’t have jurisdiction there. Imagine the flip side: if a court in, say, China, ruled that Google had to block a certain video — and then found Google in contempt for not blocking viewers in the US from accessing that content. Most people would flip out.

But Garcia and her lawyer seem to think that a single copyright ruling in the US is grounds for worldwide censorship. That’s fairly incredible. Though, once again, Judge Kozinski is largely to blame here, as his order certainly could be read to suggest (clearly incorrectly) that he has the power to censor the content globally.

Google has failed to comply. As of this morning, at 7:55 a.m EST, a version of Innocence of Muslims that includes Ms. Garcia’s performance is still available on Google’s Worldwide Platform and also viewable in Egypt, the nation in which the fatwa was issued for Ms. Garcia’s execution. All a viewer needs to do to view a copy of the video that contains the infringing material from any computer in the world and within in YouTube’s global platforms–and therefore is governed by the takedown order–is to change his or her settings to any country platform, such as “Egypt.”

That’s not the only problem with the motion. It also seems to completely ignore existing rulings (such as in the Viacom case) that state that in issuing takedowns, you need to point to the specific instance of infringement, rather than just “make all of this disappear.” That’s quite reasonable, because content itself is not infringing absent context. There may be perfectly valid versions of the content that are fair use — especially given the news interest in this particular ruling. But Garcia is insisting that Google has to proactively police all copies and block them — again, thanks in part to Kozinski’s overly broad language in his order that implies a duty to police this issue, despite the law not saying that at all.

Furthermore, the DMCA’s 512(j) itself says that injunctions granted under it can only apply to “a particular online site,” rather than some sort of global ban across every site in every locale. Kozinski, once again, seems to have gone beyond what the law allows in his weird quixotic quest to twist copyright law into something it is not.

For Google, it is a pedestrian, technical exercise to take down those URLs, to hire an intern to just search for “Innocence of Muslims,” and their suggestion that Ms. Garcia should comb through YouTube again, and provide Google with the information again, belies Google’s claim that it is in compliance.

While Kozinski seems to ignore this, the DMCA has never had a forward-looking duty to monitor and block all instances of a particular piece of content. It appears that Garcia and her lawyer are trying to simply make up new law here. As we noted just recently, there are some efforts underway to change the DMCA from a “notice and takedown” provision to “notice and staydown” but that’s simply not the law today, no matter what Kozinski thinks it is.

The motion goes even further, insisting that the only way to comply with a takedown notice is to completely remove the file from the server, rather than just disable it from being viewable:

Additionally, as of the writing of this brief, Google has not “taken down” anything. Instead, it has merely disabled the various uploads displaying Innocence of Muslims in forms that contain infringing content, leaving the content up and viewable via thumbnails.

Of course, the actual law says that upon notification a company only needs to “remove, or disable access to, the material.” Once again, it seems that this is another problem with Kozinski’s overly broad order, which declared that Google had to “takedown” the content, rather than just disable it, even as the law has said disabling it should be sufficient.

Furthermore, the motion seems to suggest that Google has a further duty (not even discussed in Kozinski’s order) to somehow block Google’s search engine from ever pointing to the video anywhere else in the world.

Google has failed to remove full copies of the video from its platforms, has failed to prevent new uploads of the video to YouTube, and continues to publish on its Google search index platforms links to numerous sites and platforms where the video can either be directly viewed or where it can be easily downloaded and saved to viewers’ computers.

So now they want to censor Google search results to other sites as well? Yikes.

Garcia also complains about the “snide” error message placed on copies of the video that were disabled.

Indeed, Google has not even made a pro forma attempt to comply with the order, choosing instead to temporarily disable only a few copies of the video that contain infringing content and putting in their place a snide message to the public that states:

“This video is no longer available due to a copyright claim by an actress over her 5-second appearance in the video. A U.S. court has ordered Google to remove the video. We strongly disagree with this copyright ruling and will fight it.”

As is clear from Google’s near-total disregard of the order and its ridiculing of the Court’s authority, Google is thumbing its nose at the Court and making a mockery of our judicial system in an apparent attempt to encourage the public to blame and harass Ms. Garcia and to continue to use infringing content to generate YouTube revenues from traffic directed through the 852 URLs that have illegally posted the content.

Of course, all of Google’s responses so far do not seem like “contempt” or “thumbing its nose,” but rather following through with the exactly what the law says is proper. Disabling access to the known videos in the US. This is the same way that Google responds to legal takedowns in other countries as well — disabling it for those countries only. And, yes, Kozinski’s order could be read to demand further actions, including fulling taking down all such videos, even those outside the US, but those are just additional problems with Kozinski’s order, which go way beyond what the law says. Everyone has reasonably focused on the ridiculousness of the original claim of giving Garcia a copyright interest in the film, and to a lesser extent the First Amendment-defying gag order he placed on Google. But, the details of this contempt motion highlight that Kozinski got a lot of the little things completely wrong as well, such as ordering Google to go way beyond what copyright law requires.

This is a bad case on so many levels, but it could be even more ridiculous if these kinds of precedents by Kozinski’s blatant misreading of the law are allowed to stand. The dangerous precedents go beyond just allowing an actor in a film to claim a copyright on the film, but further allowing bogus “worldwide” injunctions and a requirement to completely “take down” content, rather than just disable access to it (which creates a whole host of other problems). Once again, it seems abundantly clear that Kozinski simply went off the reservation with his ruling, ignoring what the law actually says to satisfy his own desire to censor this video.

Filed Under: alex kozinski, censorship, cindy garcia, cindy lee garcia, contempt, copyright, dmca, injunctions, innocence of muslims, jurisdiction, takedowns
Companies: google, youtube

UK Continues To Censor The Press: Orders Wall Street Journal To Pull Details From Already Published Story

from the no-freedom-of-the-press dept

The UK’s <a href=”https://www.techdirt.com/articles/20131016/12322424903/uk-prime-minister-urges-investigation-guardian-over-snowden-leaks-there-shall-be-no-free-press.shtml’>fight against a free press continues. As we’ve discussed in the past, the UK has this bizarre rule in which courts issue broad injunctions that try to silence the press from naming names of people accused of crimes. Given that, a court apparently ordered the Wall Street Journal to remove the names of bankers the WSJ had noted were expected to be named as being involved in the criminal manipulation of the LIBOR rate:

A British judge ordered the Journal and David Enrich, the newspaper’s European banking editor, to comply with a request by the U.K.’s Serious Fraud Office prohibiting the newspaper from publishing names of individuals not yet made public in the government’s ongoing investigation into alleged manipulation of the London interbank offered rate, or Libor.

The order, which applies to publication in England and Wales, also demanded that the Journal remove “any existing Internet publication” divulging the details. It threatened Mr. Enrich and “any third party” with penalties including a fine, imprisonment and asset seizure.

Except, as the Journal notes, it had already published the story out on the wire, and while it took down its own web story, and is protesting the injunction, it’s not at all difficult to find other stories that published the names:

In Friday’s U.S. edition of the newspaper, 11 names were printed, including former UBS AG (NYSE:UBS) and Citigroup Inc. (NYSE:C) trader Tom Hayes; his former boss at UBS, Michael Pieri; and two former brokers at R.P. Martin Holdings Ltd., Terry Farr and James Gilmour.

And, of course, anyone who got the print version, which had already gone to press, could see the names as well:

And, in the end, all this has really done is draw that much more attention to the names.

Filed Under: censorship, freedom of the press, injunctions, libor, press, super injunctions, uk, wall street journal
Companies: dow jones