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Posted on Techdirt - 27 May 2015 @ 3:06pm

Ohio Judge Fed Up With Malibu Media: Appears To Give Copyright Troll One Last Chance

from the pay-attention-now dept

With all the talk about Prenda and its copyright trolling practices, it's long been clear that the real king of copyright trolling in the US is Malibu Media -- better known as xArt -- and its legal team led by Keith Lipscomb (and we'll leave aside the fact that behind the scenes, it appears to be using the same German "international men of mystery" that other copyright trolls, like Voltage Pictures have been using). Either way, Lipscomb's shakedown campaign accounts for an astounding percentage of copyright lawsuits filed in the US these days. And, given some of the stories that have come out in these lawsuits, it's kind of astounding that the company has not received the "Prenda treatment" from any federal judges.

That may be about to change. Federal district court judge Timothy Black appears to have had enough of Malibu Media and its copyright trolling practices. In two separate cases this week, Judge Black issued "orders to show cause" (more or less judicial language for "I think you've done something really bad and here's your last chance to show me otherwise) that go beyond the usual level of "Hey, it appears you've been acting naughty" to a full blown recitation of all of Malibu Media's questionable practices.

Both orders (first one and here's the second) ostensibly focus on a common problem with Malibu Media's lawsuits: the failure to actually serve the defendants (when your main focus is just on getting identifying info to shake down people with threats that get them to settle, actually following official procedure required for an actual lawsuit falls by the wayside). And Malibu Media/Lipscomb/flunkies are notorious at screwing this up. In this case, Judge Black had already issued multiple orders to show cause over the issue. You can read about all the missed deadlines in the full filing, but Judge Black sees the problems here.

The much delayed filing of the summons return simultaneously forced the Court to unnecessarily expend judicial resources in the issuance of an Order to Show Cause and hindered the ability of the Court to manage its docket. With respect to the filing of an answer or other matters dependent on the date of service of process, the Court’s ability to actively manage its docket is entirely dependent on counsel filing a summons return within a reasonable amount of time.
But that's just the preamble. From there, Judge Black makes it clear he's well read up on all of Malibu Media's infamous shenanigans in gaming the judicial system for profit.
The Court does not view Malibu Media’s conduct in this action in isolation. Rather, the Court views it as part of an unmistakable pattern that has emerged in other actions before this Court and in context of observations made by multiple other federal judges in cases involving Malibu Media.

This Court has observed the conduct of Malibu Media and its counsel of record in over 60 cases filed in this District in the past twelve months. This is not the first case in which Malibu Media has filed a summons return well after the date of service. Counsel appears to have made a misrepresentation in seeking an extension of time to complete service in two cases. The Court also issued an order to show cause after counsel publicly filed a defendant’s name in direct violation of two orders unambiguously ordering counsel to file that information under seal.
We wrote about that public filing a few months ago. But that's not all that the judge has been watching. He's also well aware of the notorious "Exhibit C," where Malibu Media would file an "exhibit" of other movies that it believed the defendant may also have downloaded illegally -- even though it was not the copyright holder on those films. The titles were often very embarrassing, suggesting that the entire purpose of Exhibit C was to embarrass someone into settling so the list would not be associated with their name in court documents.

Judge Black also calls out the "swarm joinder" issue that was popular in early lawsuits -- whereby copyright trolls like Malibu (and others) tried to lump hundreds or thousands of individuals together in a single lawsuit, arguing it was proper to "join" them all since they participated in the same infringement. As Black notes, that misuse of the court system really only set the stage for a bunch of other questionable practices. It seems clear that Judge Black is well aware of the game being played, and even refers to it as copyright trolling:
Malibu Media asserts that it is necessary to invoke the Court’s subpoena power to “propound discovery in advance of a Rule 26(f) conference.” .... However, not a single one of these 60 cases has ever progressed to a Rule 26(f) conference. In fact, most cases are voluntarily dismissed by Malibu Media pursuant to Rule 41(a)(1)(A)(i) without obtaining a summons, but presumably after Malibu Media has used the third-party subpoena to obtain a settlement. The name of the IP subscriber is never provided to the Court in these voluntarily dismissed cases. This makes it impossible for this Court or any other court to determine, for example, if a later action should be dismissed with prejudice under Rule 41(a)(1)(B). In the few cases in which a defendant has appeared with counsel, counsel have raised numerous allegations of impropriety and abusive litigation tactics. The Court is not blind to the reality that these allegations likely substantially underrepresent the amount of misconduct that goes unreported by defendants who simply pay Malibu Media’s settlement demand rather than face the prospect of expensive and extensive litigation regarding their purported interest in pornography.

The Court is aware that Malibu Media, through separate local counsel, has filed thousands of similar cases in federal courts across the country. A copyright troll has been defined as “an owner of a valid copyright who brings an infringement action not to be made whole, but rather as a primary or supplemental revenue stream.” .... Under this definition, Malibu Media certainly qualifies. However, Malibu Media generally responds to this allegation by pointing to comments of the trial judge in the so-called bellwether trial as unassailable proof that its intentions and tactics differ from other entities that bring copyright infringement actions related to pornographic movies.
Oh right. The Bellwether trial. That case had all sorts of problems, including a lying defendant who tried to destroy evidence. Unfortunately, it did not do what it was initially intended to do: actually test some of Malibu Media's really questionable legal arguments. Judge Black quickly notes that the "bellwether" trial doesn't matter. Malibu Media is up to some really questionable judicial gaming. He walks through all of the abuses, from misjoinder to Exhibit C -- and even notes that despite being benchslapped over Exhibit C, Malibu Media just "evolved this practice":
Notwithstanding Malibu Media’s contention that it “instructed counsel nationwide to never file Exhibit C with a complaint again,” ... this Court has borne witness to the fact that Malibu Media has simply evolved this practice rather than eradicate it. In an Order issued in a separate case on October 6, 2014, this Court sua sponte noted a continued vestige of Exhibit C in several paragraphs of Malibu Media’s complaint.... Instead of attaching Exhibit C, Malibu Media adapted its practice and now made an explicit reference to a document with “additional evidence” that the defendant had distributed a large number of third-party files through BitTorrent.... Malibu Media disingenuously offered to produce this document to the Court with the seemingly off-handed remark that “many of the titles to the third party works may also be relevant to proving Defendant is the infringer because they correlate to the Defendant’s hobbies, profession, or other interests.” ... Citing the two Wisconsin district court cases that imposed sanctions for attaching Exhibit C, the Court struck the offending paragraphs from the complaint and ordered Malibu Media to file a conforming amended complaint forthwith.... Two months later, Malibu Media voluntarily dismissed the action without filing an amended complaint.
In discussing what to do about this, Black notes that, ordinarily, it's wrong to just dismiss a case to discipline "an errant attorney" since that would be unfair to the parties the lawyer represents. However, he notes that in this case, it's different. The sheer number of cases and the fact that Malibu/Lipscomb's games continue suggest that this is not just a bad lawyer not fairly representing the interests of a client. Oh, and it's clear Black knows that this is all being run through Lipscomb, rather than the random lawyers who actually turn up for local cases:
Here, and in the dozens of other actions before the Court, there is ample evidence that Malibu Media or its “outside general counsel,” rather than its local counsel of record selects the litigation strategy and tactics. 12 Accordingly, the general principle that “directly sanctioning the delinquent lawyer rather than an innocent client” may not apply here....
Still, Judge Black is incredibly patient. Despite the earlier orders to show cause, he once again gives Malibu a chance to explain itself. Though in the second of the two orders, Judge Black also lays out the possibility of "Rule 11 sanctions" against the lawyers for flat out lying to the court and failing to correct the record on it -- though again (perhaps surprisingly) suggests that the conduct to date is not enough to get there.
Here, the record indicates that on February 10, 2015, Malibu Media’s counsel represented that service had not yet occurred. (Doc. 10 at 2). However, it is clear that Defendant was served on January 26, 2015. (Doc. 12). Counsel made no attempt to correct this statement until after the Court issued an Order to Show Cause regarding the apparent failure to complete service of process.
It may be frustrating to those who are watching these cases that even this is not enough to bring down Rule 11 sanctions, but Judge Black has made it clear that he's watching -- and you can bet that other judges across the country may start to take notice as well. And assuming Malibu Media can't resist continuing to push things even further, the record of misconduct will be that much longer and more detailed.

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Posted on Techdirt - 27 May 2015 @ 1:49pm

How Much Of Europe's Regulatory Interest In Silicon Valley Is Just Jealousy Over Successful Foreign Companies?

from the real-or-imagined dept

A month ago, the EU brought down the antitrust hammer on Google -- with somewhat suspicious timing. As we noted, the move by EU regulators to claim that Google violated antitrust laws came the very same day that the EU's digital commissioner, Gunther Oettinger announced that the EU should more heavily regulate American internet companies to help European competitors get a leg up against them:

The European Union should regulate Internet platforms in a way that allows a new generation of European operators to overtake the dominant U.S. players, the bloc’s digital czar said, in an unusually blunt assessment of the risks that U.S. Web giants are viewed as posing to the continent’s industrial heartland.

Speaking at a major industrial fair in Hannover, Germany, the EU’s digital commissioner, Gunther Oettinger, said Europe’s online businesses were “dependent on a few non-EU players world-wide” because the region had “missed many opportunities” in the development of online platforms.

Mr. Oettinger spoke of the need to “replace today’s Web search engines, operating systems and social networks” without naming any companies.
And this week, the NY Times has an article about the increasing attention Facebook is getting from European regulators as well. In that case, it's not so much antitrust issues (though, those are raised on the side), but much more focused on data protection/data privacy issues.

To be clear, Facebook doesn't have the best reputation when it comes to handling privacy issues of its users. The company has a history of changing its privacy policies with little notice, sometimes in ways that appear to unilaterally shift the privacy settings on certain information. Frankly, much of this was a result of Facebook needing to shift from what was an almost entirely closed network to one that was much more public and open -- which was a key to the site becoming so successful. Frankly, while some of the criticism is well deserved, and Facebook's bull-in-a-china-shop approach to privacy in its earlier days was pretty startling, of late the company has appeared to be much better about things. And many of the earlier concerns proved to be almost entirely overblown by people misrepresenting things or taking things completely out of context.

That isn't to claim that Facebook is good for user privacy -- but the supposed fears about Facebook and privacy seem overblown. Yes, Facebook is super popular, but it's still a voluntary system that you can choose to use or not. If you really don't like the company, it's not hard to not use it and to block it from tracking you on various other sites. But that won't stop Europe from using fears over privacy as a wedge to attack the company:
Regulators in Europe, however, are especially focused on how the company collects and handles those users’ data. The region has some of the world’s toughest data protection rules, and policy makers from France, Germany and Belgium are investigating whether Facebook broke Europe’s laws after the company announced a new privacy policy this year.

If found to have breached the privacy rules, Facebook may face fines or demands that it change how the company handles people’s data, though the company says it complies with the region’s data protection laws.
Meanwhile, European regulators are also looking to regulate how Facebook's messaging systems work:
Yet lawmakers are now looking into whether Facebook’s messaging services should be regulated like those offered by traditional carriers. And industry executives say that as the social network starts to offer other services like phone calls through the company’s many smartphone applications, Facebook should play by the same rules that now apply to traditional mobile operators.
It will be worth watching closely to see what regulators come up with. It is, of course, entirely possible that these internet companies really are doing bad things that should require regulators to step in. But, to date, there's been a lot of puffed up smoke, rather than any actual fire. And it really seems like the interest from EU regulators has more to do with the fact that these companies are (1) big and successful and (2) American rather than European.

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Posted on Techdirt - 27 May 2015 @ 10:43am

Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies

from the is-it-art? dept

You may recall over the past few years, our coverage of a key "fair use" lawsuit involving "appropriation artist" Richard Prince. That case involved Prince taking photos of various Rastafarians from a book by Patrick Cariou, and then adding a bit of stuff to the photos, declaring it art and profiting mightily. We were troubled by an initial ruling against Prince, which involved judges determining whether or not his work counted as "art." Thankfully an appeals court went the other way and the case then settled before any further review.

Prince is now making more news with his new gallery exhibit that appears to involve him screenshotting various selfies posted to Instagram, adding a "comment" to them, blowing them up and printing them out to put on a gallery wall. Then, you can buy them for around $100,000 a piece. And, no, Prince did not communicate with or get permission from anyone whose photos he is using. Here's just one example (as highlighted in the linked Fortune piece). An Instagram user named Doe Deere discovered that this selfie then appeared in Prince's latest showing:

A photo posted by Doe Deere (@doedeere) on

And here's her post about the fact that her own picture had been displayed and then sold for ~$90,000.
As you can see, Doe Deere says she's not going to sue. And at least one other Instagram user has said that he too won't sue -- even though he's clearly pissed off about it. Sean Fader, a struggling artist, noted that suing would actually play into Prince's own hands, making Prince "look like he’s thinking about rights in digital spaces, and that the work is questioning authorship in contemporary society." Instead, Fader has decided that if an appropriation artist is going to appropriate his work, he might as well appropriate it right back:
“I’m really interested in the idea of re-appropriating my own work and taking the work out of the frame that he’s put it in, re-engineering it to continue the conversation that I was interested in from the beginning, and shifting the work back to that space,” Fader said. “I struggled for a while to decide how I felt about it. When I went and saw it I was fuming. I would be psyched to be appropriated into work that was good. I just think the work is flat. It flattened the work in a way that I was not thrilled about its denial. By not communicating with me, by not talking to me, he denied every level of shared authorship, or engagement, all of those things that were so important to me in the work. That’s what irked me about the whole thing. So Prince made his move, now I’ll make mine.”
How'd he do that? By sending out a press release, telling people to visit his work in a new exhibit "organized" by Richard Prince.

So far it doesn't appear that anyone has sued him -- but some of the commentary on this is completely inane. The Washington Post had a totally clueless story suggesting that your Instagram photos aren't really yours.

Frankly, this does seem like a jackass move by Prince, but (no matter what Fader feels above) it does raise questions about "rights in digital spaces" and -- more particularly -- art. Part of the reason why Prince won his case over the Rastafarian photos was because his artwork was deemed transformative -- not in terms of how the artwork looked necessarily, but the context of the artwork itself. And that's definitely true here. Whether or not you think it's any good -- or whether or not you think that Prince is a jackass for the way he went about putting this work together -- it doesn't change the fact that he's the one attempting to take these Instagram photos and turn them into "high art."

In some ways, it reminds me of the differences between invention and innovation. Invention is coming up with something new. Innovation is making something that the world wants. Yes, the Instagram users who created these photos made the works -- but Prince made them such that people were willing to pay $90,000 for them. That is "transformative" in more ways than one -- even if you are reasonably perplexed by what kind of sucker might pay that money. The fact is that he convinced people to do so, and that's a form of innovation.

Would that be enough to survive an actual lawsuit should one arise? Perhaps not. Fair use cases are almost always a total crapshoot, and it's not hard to see how a jury and judges would stack up the four factors in a variety of ways that could lead to either result. But, it still seems worth considering what kind of loss has actually happened here? Yes, it feels slimy by Prince. And the fact that he's making $90k a pop for selling these images (without sharing those proceeds with the original photo creator certainly contributes to that really slimy feeling). But it's not as if any of these images on their own would be seen as worth that. It is -- for better or worse -- the fact that Prince chose to highlight them that suddenly made them worth so much money. That may not be "fair" -- but it might be fair use.

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Posted on Techdirt - 27 May 2015 @ 9:44am

Disney Warned Fusion Not To Do News Coverage That Might Embarrass It Or Others In Hollywood

from the so-that-happened dept

The NY Times has an interesting profile of "Fusion" -- the briefly high-profile project that was a combined offspring of Disney and Univision. Fusion got some attention last year for scooping up a bunch of high-profile journalists (including a few that I really like) to power its rush into the "we'll cater to the millennials!" market. The article suggests things aren't actually going that well, but that's not that interesting to me. Instead, what caught my attention was a brief aside about how Disney keeps stepping in to tell Fusion to shut up about stuff that Disney and its friends in Hollywood don't like -- such as coverage of the leaked Sony emails:

For instance, according to two senior Fusion staff members, who spoke on the condition of anonymity, Disney put the organization on notice that it would not take kindly to coverage that might dent its standing with consumers. The warning came after Fusion published several stories based on documents that hackers stole from Sony.

Fusion is not alone: In negotiations to create a Vice cable channel, Disney and Hearst insisted on a clause protecting the companies in the event that Vice content “embarrasses Hearst or Disney in any way,” according to people with knowledge of the matter, who spoke on condition of anonymity to discuss private negotiations.
Hmmm. If true, I'd hope that some of the journalists who joined Fusion would consider standing up and speaking out about that kind of bullshit corporate interference with the journalism side of things. Every time a big company owns a journalism outlet, we always hear that they promise not to interfere, but everyone knows the reality is different. But for the actual journalists, this kind of thing requires standing up and telling the corporate parents to shove off.

And it is true that Fusion was one of the leading online sources publishing stories based on the hacked Sony emails, with a whole bunch of stories by both Kevin Roose and Kashmir Hill -- two of Fusion's high-profile hires. It doesn't appear that either have written about the Sony hacks since back in December -- even though there have been a bunch of stories that have come out of the leaks since then.

Remember when CBS stepped in and blocked CNET, a publication that it owned, from giving an award to DISH, because CBS was involved in a legal dispute with DISH? At least one CNET reporter ended up resigning over that kind of interference. If the reports about Disney interfering with Fusion's coverage of things like the Sony hack emails is true, one would hope that Fusion's high-profile journalists would do the same.

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Posted on Techdirt - 27 May 2015 @ 8:17am

Obama Administration Files Totally Clueless Argument Concerning Software Copyrights In Supreme Court Case

from the oh-gosh-no dept

The Obama administration made a really dangerous and ignorant argument to the Supreme Court yesterday, which could have an insanely damaging impact on innovation -- and it appears to be because Solicitor General Donald Verrilli (yes, the MPAA's old top lawyer) is absolutely clueless about some rather basic concepts concerning programming. That the government would file such an ignorant brief with the Supreme Court is profoundly embarrassing. It makes such basic technological and legal errors that it may be the epitome of government malfeasance in a legal issue.

We've written a few times about the important copyright question at the heart of the Oracle v. Google case (which started as a side show to the rest of the case): are software APIs covered by copyright. What's kind of amazing is that the way you think about this issue seems to turn on a simple question: do you actually understand how programming and software work or not? If you don't understand, then you think it's obvious that APIs are covered by copyright. If you do understand, you recognize that APIs are more or less a recipe -- instructions on how to connect -- and thus you recognize how incredibly stupid it would be to claim that's covered by copyright. Just as stupid as claiming that the layout of a program's pulldown menus can be covered by copyright.

The judge in the district court, William Alsup, actually learned to code Java to help him better understand the issues. And then wrote such a detailed ruling on the issue that it seemed obvious that he was writing it for the judges who'd be handling the appeal, rather than for the parties in the case.

Unfortunately, the judges at the federal circuit court of appeals (CAFC) didn't pay attention and made a completely ignorant ruling, in which it became so clear that they didn't understand the difference between software and an API that it was almost embarrassing. The decision quoted people in ways that were completely out of context, where the CAFC judges clearly misunderstood what was being said. This ruling would fundamentally kill off important forms of innovation if allowed to stand. It would be a disaster.

So, of course, the case has been appealed to the Supreme Court -- and that's where Donald Verrilli steps in. The Supreme Court asked the Solicitor General if the US had an opinion on the case. This apparently led to a healthy debate within the Obama administration over the position it should take. I know that there are people within the administration who understand these issues. Hell, Ed Felten has just been appointed deputy CTO for the administration and he, of all people, recognizes the difference between an API and software (in fact, he signed onto an amicus brief saying as much). He also (more than most) understands the copyright side of things and the potential impact of getting this wrong.

But instead of listening to the people who actually understand the technology, it appears that Verrilli sided with the copyright maximilist/technology-ignorant faction in the government. The final brief argues that the Supreme Court should stay out, that the CAFC got it right, and that it's impossible to distinguish between APIs and software. Because Donald Verrilli has absolutely no clue how software works. That's a fundamentally ridiculous argument, and argued out of near total ignorance of the basic facts of this case.

Just as a quick refresher, copyright law clearly states that:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
An API is, quite simply, a "system or method of operation." It's not copyrightable. That should be the end of the story. And yet, everyone who doesn't get this keeps arguing that an API is the same thing as software itself. This is just flat out wrong. But Verrilli makes the same mistake:
Despite the inherently functional character of all computer code, the Copyright Act makes clear that such code can be copyrightable. Nothing about the declaring code at issue here materially distinguishes it from other computer code, and petitioner has identified no genuine conflict of authority concerning Section 102(b)’s applicability to circumstances like these. Although petitioner has raised important concerns about the effects that enforcing respondent’s copy-right could have on software development, those concerns are better addressed through petitioner’s fair-use defense, which will be considered on remand.
No, no, no and no. Everything about the declaring code distinguishes it from other computer code if you understand the first thing about computer programming. One is computer code. One explains an interface for communicating with computer code. They're fundamentally different things.

It's like arguing that there is fundamentally no difference between a recipe and a fully cooked meal.

And yet, that's exactly what Verrilli and the Obama administration are now arguing to the Supreme Court. Because they don't understand even the most fundamental things about code, and assume that because an API looks like computer code (because whoever wrote this brief is ignorant of coding), they're the same thing.

Later in the filing, Verrilli, again, seems to assume that an API is the same thing as "computer code."
If the Copyright Act contained no explicit references to computer code, one might reasonably conclude that such code is not protectable “expression” at all. Computer code differs in a fundamental way from many traditional means of literary expression. A book or newspaper article is meant to be read and comprehended by a human being as a description of an idea or story. Although many copyrightable written documents explain how practical tasks should be per-formed, there is typically a clear distinction between the written explanation and the actual performance of the task. Computer code, by contrast, is both expression and the actual means by which a computer is induced to perform the desired function. It therefore would not be unnatural to describe computer code as a “method of operation” or “system.” Nor would it be unreasonable to conclude that, as between a book on bicycle-building and the actual construction of a bicycle, computer code is more analogous to the latter.
Again, the entire basis of this paragraph is arguing something no one is arguing against. Everyone agrees that computer code is copyrightable. What we're arguing is that APIs are not computer code -- because they're not. But because Verrilli and others can't seem to wrap their head around this, they just lump it all together. And the argument, based on this faulty premise continues:
The Copyright Act as a whole makes clear, however, that the functional character of computer code cannot be sufficient to bring it within Section 102(b). If that were so, no computer code would qualify for copyright protection;
This makes no sense. At all. Of course, computer code is copyrightable. But an API that is just a method of how to interact with that code is not computer code.
yet the Copyright Act unequivocally recognizes that a person can own a copyright in computer code.... Rather, the uncopyrightable “method of operation” or “system” or “process” is the underlying computer function triggered by the written code—for example, an algorithm that the computer executes to sort a data set. The code itself, however, is eligible for copyright protection.
Again, yes, of course the code is copyrightable. But the code is not the API. It's incredible how fundamentally the Solicitor General doesn't seem to grasp this simple concept.

When the filing eventually tries to get around to the difference between an API and software code itself, it basically just throws up its hands, saying "well, it looks like code, so it's all the same to us."
That distinction does not withstand scrutiny. Both declaring code and implementing code ultimately perform the same practical function: They instruct a computer to work. The declaring code tells the computer to call up the implementing code, and the implementing code tells the computer to perform an operation, such as executing a sorting algorithm. Both are necessary components of a Java or Android method. And neither the declaring code nor the implementing code is what a programmer physically types when invoking a method.
Yes, and the recipe and the ingredients are both "necessary components" of a meal, but that doesn't make them the same thing. Hell, to be more specific, the recipe and the description of how to prepare a meal are both necessary and they look fairly similar. But in copyright law the recipe is not copyrightable, while the description may be. That's the same thing with software code and APIs. But because the folks who wrote this brief are either ignorant -- or ridiculously chose to ignore those who do understand these things -- we get this absolutely embarrassing brief from the US government. It's a travesty.

Furthermore, Verrilli seems to be suggesting that the important Lotus v. Borland case which found that the layout of a computer program's menu structure were not covered by copyright, was decided incorrectly!
The precise rationale of Lotus is not clear. Parts of the opinion purport to rest on the proposition that Section 102(b) can foreclose copyright protection for original expression.... But other parts of the opinion seem to apply a principle analo-gous to the merger doctrine, to the effect that, be-cause there was only one menu hierarchy that would allow users to operate the spreadsheet program in substantially the same way, the menu hierarchy (un-like the underlying code) could not acquire copyright protection.... Whatever the rationale of Lotus, however, the decision cannot reasonably be read to treat Sec-tion 102(b) as applicable to computer code itself, a form of expression that the Copyright Act clearly protects and that the First Circuit took pains to distinguish.
Also very wrong, is Verrilli's repeated claim that these are issues that can be handled by a fair use analysis, rather than the question of whether or not API's are copyrightable at all:
Indeed, many of petitioner’s specific contentions will be relevant to its fair-use defense on remand. For example, although it would be anomalous to use Section 102(b) to distinguish between different segments of a single work of authorship..., Section 107(3) instructs courts to consider “the amount and substantiality of the portion [of a copyrighted work] used in relation to the copyrighted work as a whole” in adjudicating a fair-use defense. That petitioner copied only respondent’s declaring code while writing its own implementing code should therefore be a relevant factor in the lower courts’ fair-use analysis.
But this, too, is wrong. There's a big difference in saying "this is not copyrightable" and "this can be used thanks to fair use." Fair use is (unfortunately) limited and dependent on a number of factors. Something that is not covered by copyright is open to all comers. The difference is really important and the Solicitor General doesn't even care at all.

Unfortunately, the Supreme Court often follows the Solicitor General's advice on cases (though, not always). If it does so here, it would be a travesty and truly dangerous for innovation. As a ton of top computer experts (including now deputy CTO Felten) noted in their own brief (put together by the EFF), the lack of copyright in APIs has been a key element in defining the way the digital world works. To find otherwise would be a massive hit to basic innovation. As that brief explained
Today, open, uncopyrightable APIs continue to spur the creation and adoption of new technologies. When programmers can freely reimplement or reverse engineer an API without obtaining a costly license or risking a lawsuit, they can create compatible software that the interface’s original creator might never have envisioned or had the resources to develop. Moreover, compatible APIs help enable people to switch platforms and services freely, and to find software that meets their needs regardless of what browser or operating system they use. Without the compatibility enabled by the open nature of APIs, consumers could be forced to leave their data and programs behind when they switch to a new service.

The freedom to reimplement APIs also helps developers rescue “orphan” software or data—systems that are no longer supported by their creators. When a company stops supporting a computer platform or service, the ability to freely reimplement APIs protects the communities that rely on that software. Government entities and non-profits are especially susceptible to the orphan programs problem as they often cannot afford to upgrade and are left using legacy technologies for years or decades.
It would be truly ridiculous that, just because the MPAA's former top lawyer is so ignorant that he can't comprehend the difference between an API and actual software, that the Supreme Court would allow such a terrible ruling as CAFC's to stand.

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Posted on Techdirt - 26 May 2015 @ 1:47pm

Supreme Court Sides With Patent Trolls

from the bad-news dept

Well, this is unfortunate. Last fall, we wrote about yet another patent case being heard by the Supreme Court. This one (Commil v. Cisco) involved the question of whether or not a company could be found liable for "inducing infringement" when it believed that the patent in question was clearly invalid. The appeals court (CAFC) had overturned a lower court, saying that it was wrong for a judge to instruct a jury that Cisco could be found guilty of inducing patent infringement if it "knew or should have known that its actions would induce actual infringement." The big question was about the "should have known" part. Cisco argued -- and the CAFC agreed -- that the "should have known" statement created a negligence standard, which is not appropriate in such cases. Further, CAFC rightly pointed out that "one cannot infringe an invalid patent."

Unfortunately, the Supreme Court has now mostly sided with the patent holder Commil, and said that believing a patent is invalid is no defense to an inducement claim in a patent infringement case. The reasoning -- in an opinion by Justice Kennedy -- is basically "infringement and validity are two separate issues." True... but... sorta misses the point. The Court, thankfully, didn't go quite as far as it could have gone in saying that you could induce infringement even without knowledge that something is infringing, but it rejected the idea that a belief the patent was invalid is a "defense" to an inducement claim. All because it insists that validity and infringement are two entirely separate issues.

When infringement is the issue, the validity of the patent is not the question to be confronted.
But this presumption of validity is problematic in any real world scenario, and the ruling doesn't seem to care, focusing on the procedural issues of when certain arguments are made and who has the burden at what point:
To say that an invalid patent cannot be infringed, or that someone cannot be induced to infringe an invalid patent, is in one sense a simple truth, both as a matter of logic and semantics. See M. Swift & Sons, Inc. v. W. H. Coe Mfg. Co., 102 F. 2d 391, 396 (CA1 1939). But the questions courts must address when interpreting and implementing the statutory framework require a determination of the procedures and sequences that the parties must follow to prove the act of wrongful inducement and any related issues of patent validity. “Validity and infringement are distinct issues, bearing different burdens,different presumptions, and different evidence.” 720 F. 3d, at 1374 (opinion of Newman, J.). To be sure, if at the end of the day, an act that would have been an infringement or an inducement to infringe pertains to a patent that is shown to be invalid, there is no patent to be infringed. But the allocation of the burden to persuade on these questions, and the timing for the presentations of the relevant arguments, are concerns of central relevance to the orderly administration of the patent system.
Right. But that means that anyone who is aware of what they know to be an invalid patent would first need to have the patent itself rejected before they can go on with their business, and that creates a huge hurdle to innovation.

But what's interesting is that the Supreme Court then delves into a discussion on the fact that this ruling has a big impact on patent trolling situations. First, from the opinion by Kennedy:
The Court is well aware that an “industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees.”... Some companies may use patents as a sword to go after defendants for money, even when their claims are frivolous. This tactic is often pursued through demand letters, which“may be sent very broadly and without prior investigation,may assert vague claims of infringement, and may be designed to obtain payments that are based more on the costs of defending litigation than on the merit of the patent claims.” ... This behavior can impose a “harmful tax on innovation.”....

No issue of frivolity has been raised by the parties in this case, nor does it arise on the facts presented to this Court. Nonetheless, it is still necessary and proper to stress that district courts have the authority and responsibility to ensure frivolous cases are dissuaded. If frivolous cases are filed in federal court, it is within the power of the court to sanction attorneys for bringing such suits. Fed. Rule Civ. Proc. 11. It is also within the district court’s discretion to award attorney’s fees to prevailing parties in “exceptional cases.”...
But, in the dissent, Justice Scalia rips into the practice, and (for the first time) calls out patent trolling as patent trolling, and notes that the majority ruling gives more power to patent trolls:
I may add, however, that if the desirability of the rule we adopt were a proper consideration, it is by no means clear that the Court’sholding, which increases the in terrorem power of patent trolls, is preferable.
Scalia also rips apart the arguments in the majority opinion:
Because only valid patents can be infringed, anyone with a good-faith belief in a patent’s invalidity necessarily believes the patent cannot be infringed. And it is impossible for anyone who believes that a patent cannot be infringed to induce actions that he knows will infringe it. A good-faith belief that a patent is invalid is therefore a defense to induced infringement of that patent.
As for the fact that validity and infringement are different issues, Scalia simply notes:
That is true. It is also irrelevant. Saying that infringement cannot exist without a valid patent does not “conflate the issues of infringement and validity,” ... any more than saying that water cannot exist without oxygen “conflates” water and oxygen. Recognizing that infringement requires validity is entirely consistent with the “long-accepted truth . . . that infringement and invalidity are separate matters under patent law.”
Scalia also trashes the idea that without this ruling it would undermine the presumption of validity. Not so, says Scalia, as it only would matter in cases where, in fact, the patent is not valid.
This presumption is not weakened by treating a good-faith belief in invalidity as a defense to induced infringement. An alleged inducer who succeeds in this defense does not thereby call a patent’s validity into question. He merely avoids liability for a third party’s infringement of a valid patent, in no way undermining that patent’s presumed validity.
Either way, I think Scalia got this one right, and unfortunately the majority of the court went the other way. The Supreme Court had been making a bunch of good rulings on patent law lately, so I guess it was bound to issue a stinker eventually. The overall impact won't be as big as some of the other cases, and I guess it's nice to see that the Supreme Court absolutely recognizes that patent trolling problem, as that will be handy in future cases.

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Posted on Techdirt - 26 May 2015 @ 8:12am

Sherlock Holmes And The Case Of The Never Ending Copyright Dispute

from the and-here-we-go-again dept

For the last few years, we've been covering a long (now complete) saga concerning the status of the copyright on Sherlock Holmes. A few years ago, we wrote about the odd state of the copyright according to the Conan Doyle Estate -- which insisted that the character was not in the public domain in the US (even as it is in the public domain in many other countries). That's because, while nearly all of Sir Arthur Conan Doyle's works were published long before 1923, a final set of 10 stories were published after. The Estate erroneously argued that as long as any part of Sherlock Holmes was under copyright, all of it was. In 2013, a scholar of Sherlock Holmes sued the Estate to argue otherwise. And despite the silly fears of the Estate, both the district court and the appeals court rightly explained how copyright law works to the Estate, noting that all of the early works are in the public domain, and the only copyright that may be maintained is in the marginal creative additions in those final 10 works. The appeals court even went so far as to argue that the Estate was abusing antitrust laws in demanding fees from everyone. And the Supreme Court refused to review the case.

And thus, Sherlock Holmes is considered to be mostly in the public domain. One might argue that a US federal court outside of the 7th Circuit might find otherwise, but it appears that the Estate has given up the fight and now will readily admit that the earlier works are in the public domain. That does not mean, however, that it is done suing. Not at all. The Estate has now sued over a book and movie that purport to tell the story of Holmes' retirement. The author, Mitch Cullin, wrote the book A Slight Trick of the Mind about a decade ago, and that's now been adapted into a film called Mr. Holmes, being released by Miramax.

First, the Conan Doyle Estate at least seems willing to admit that the earlier works are now fully in the public domain:

The first fifty of Conan Doyle’s Sherlock Holmes short stories and novels are in the public domain. But the last ten of his original Sherlock Holmes stories, published between 1923 and 1927 (the Ten Stories), remain protected by copyright in the United States. These copyrighted ten stories develop the details of Holmes’s fictional retirement and change and develop the character of Holmes himself.
And that's where the trouble comes in. The Conan Doyle Estate makes some reasonable claims that Cullin used a few details from the stories that are still under copyright in developing the ideas for his book and the subsequent movie (where he worked on the screenplay). As the complaint notes, the public domain works mention Sherlock Holmes' retirement just twice, without that much detail. The works still under copyright delve into it much more. The complaint also notes some pretty clear similarities in certain scenes. For example, it points to this passage from the (still under copyright) Holmes story "Blanched Soldier":
It is my habit to sit with my back to the window and to place my visitors in the opposite chair, where the light falls full upon them. Mr. James M. Dodd seemed somewhat at a loss how to begin the interview. I did not attempt to help him, for his silence gave me more time for observation. I have found it wise to impress clients with a sense of power, and so I gave him some of my conclusions.

“From South Africa, sir, I perceive.”

“Yes, sir,” he answered, with some surprise.
And contrasts it with the following from Cullin's work:
As was my usual custom, I sat with my back to the window and invited my visitor into the opposite armchair, where— from his vantage point—I became obscured by the brightness of the outside light, and he—from mine—was illuminated with perfect clarity. Initially, Mr. Keller appeared uncomfortable in my presence, and he seemed at a loss for words. I made no effort to ease his discomfort, but used his awkward silence instead as an opportunity to observe him more closely. I believe that it is always to my advantage to give clients a sense of their own vulnerability, and so, having reached my conclusions regarding his visit, I was quick to instill such a feeling in him.

“There is a great deal of concern, I see, about your wife.”

“That is correct, sir,” he replied, visibly taken aback.
Certainly a similar setup, but is it infringing? That's where things get pretty tricky, and why I still have trouble with the idea of using copyright to cover "a character." After all, copyright is supposed to only protect the specific expression, rather than the idea. That's why it's never made sense to see courts accept the idea that someone writing a different story using the same characters should be seen as infringing. The courts here seem to handle different cases differently, allowing something like The Wind Done Gone (a retelling of Gone With The Wind from another character's perspective) but not allowing Coming Through the Rye, an unauthorized sequel to Catcher in the Rye. For reasons that are not entirely clear, judges seemed to feel that The Wind Done Gone was more acceptable as a commentary on the original, rather than just a new work building off of the original.

However, if we're going to be honest and say that copyright only protects the specific expression, then passages like the one above should not be protected by copyright. The Cullin version is not a reproduction of the original. Other elements that the Estate argues Cullin copied are even more tenuous:
This story, “The Adventure of the Lion’s Mane,” significantly develops the fictional world of Holmes’s later life. In this story Conan Doyle created original details such as the lonely farmhouse in which Holmes lives on a ridge overlooking the English Channel, with chalk cliffs visible in the distance and a path down to the sea.

Along with other copyrighted stories, “Lion’s Mane” also adds important traits to Holmes’ character. For example, in his later years, living in the countryside instead of London, Holmes comes to love nature and dedicates himself to studying it. Other copyrighted stories give Holmes in his later years a personal warmth and the capacity to express love for the first time.

Cullin took these and many other protected elements of setting, plot, and character in A Slight Trick of the Mind. Cullin has Holmes living in a lonely farmhouse on a ridge over the Channel. Chalk cliffs are visible in the distance and a path leads down to the sea. Holmes’s love of nature and developing ability to express love are central to Cullin’s story.
Seriously? "Chalk cliffs" in the distance? A path down to the sea? These are not the things copyright is designed to cover.

There are lots of other sketchy aspects to the lawsuit as well. The book came out ten years ago. The statute of limitations on copyright is supposed to be three years, but there are disagreements over what those three years means -- does it mean you can only get compensated for infringements from the past three years? Or does it mean you can't sue at all after three years have passed?

Separately, there are venue questions, given that the lawsuit was filed in New Mexico... on the basis that Cullin grew up there and studied Sherlock Holmes there. But he doesn't live there any more (and the Estate is in the UK). It seems like careful jurisdiction shopping by the Estate.

That said, given the way these cases normally work out, it won't be at all surprising if the court sides with the Estate. People still have this visceral feeling that "if inspired too directly by this copyrighted work, it must be infringement." That's unfortunate, given how much of human creativity is based on people building off the works of one another.

And... finally, we'd be remiss if we didn't mention that the Estate is also pulling out its other big gun here, arguing trademark infringement as well, rather than just copyright infringement:
The Estate has developed common law trademark protection for SHERLOCK HOLMES for the above goods and services—including motion picture and television series—by virtue of its consistent licensing of its mark. Every major motion picture and television production in the past thirty years using SHERLOCK HOLMES has been released in the United States in association with the Estate, from Lorindy Pictures’ 1981 television movie series Sherlock Holmes, Paramount Pictures’ 1985 movie Young Sherlock Holmes, and Granada’s 1989 television series Sherlock Holmes, to Warner Brothers’ current Sherlock Holmes movies and the BBC’s Sherlock. Because of its widespread use in connection with Estate-licensed motion pictures and television series, SHERLOCK HOLMES has tremendous power as a source identifier of the Estate.
While this might appear to be an even stronger claim, that's not necessarily the case either. The famous Dastar v. Fox saw the Supreme Court shoot down an attempt to use trademark law to try to lock up a work in the public domain. In that ruling, the Supreme Court (written by Justice Scalia) noted:
To hold otherwise would be akin to finding that [trademark law] created a species of perpetual patent and copyright, which Congress may not do.
But, this might not be quite the same situation, if the Estate is focused on arguing about the works still under copyright, rather than those in the public domain.

Of course, there's a separate argument to all of this, which is that at the time that the original copyrights were granted for those last ten works, the longest that anyone could have expected them to last was 56 years, and by any reasonable consideration, all of the Holmes stories should be in the public domain. But, alas, Congress has decided to retroactively extend copyright again and again, and the Supreme Court has decided that's okay.

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Posted on Techdirt - 23 May 2015 @ 6:55am

Senate Fails To Pass Both USA Freedom And PATRIOT Act Extension, Setting Up Possible Expiration Of Section 215

from the the-drama-rises dept

Well, well. Here's a quick (rare) Saturday post just to get folks up to speed on what happened late last night. After going back and forth for a while, the Senate voted on... and failed to approve both a version of the USA Freedom Act and a short "clean extension" of the clauses of the PATRIOT Act that were set to expire -- mainly Section 215 which some (falsely) believe enables the NSA to collect bulk metadata from telcos (and potentially others). What this means is that it is much more likely that Section 215 expires entirely. The Senate has since left town, though it plans to come back next Sunday, May 31st to see if it can hammer out some sort of agreement. Though, beware of false compromises, such as those being pushed by Senate Intelligence Committee (and big time NSA supporter), Richard Burr. His "hastily introduced" bill pretends to try to "bridge the gap" but in actuality is much worse than basically anything else on the table.

Oftentimes when things like this happen, it's all political theater -- with Senators appearing to "take stands" on key issues to please constituents. This time, however, there does seem to be genuine confusion as to where this is all going to end up. Next week ought to be fairly interesting...

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Posted on Techdirt - 22 May 2015 @ 6:16pm

TPP Moves Forward In Senate With Fast Track; On To The House

from the but-of-course dept

As was widely expected after last week's vote, the Senate has now voted in favor of fast track for trade agreements (officially "Trade Promotion Authority") after Republican Senators convinced enough of their Democratic counterparts to give up their Constitutional authority in regulating international commerce (yes, you read that right: Republicans who keep complaining about the President taking too much power and not obeying the Constitution, just voted explicitly to give up Constitutional authority to the President of the other party, while most Democrats declined to do so).

Also as expected, all attempts to add amendments to the TPP -- including Elizabeth Warrens' plan to strip corporate sovereignty ISDS provisions -- failed. Any of the amendments almost certainly would have sunk the fast track bill in the House, so they were all basically poison pills designed to kill fast track. Still, it's disappointing that Congress is favoring corporate sovereignty, when it's pretty clear that it's a provision that is going to come back and bite us badly.

Either way, the fight will now move on to the House, where it's not yet clear if there are enough votes. But, don't be surprised to see a full court press to convince another dozen or so Democrats to join with Republicans in coughing up Congress' Constitutional authority over international trade.

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Posted on Techdirt - 22 May 2015 @ 1:58pm

Florida Governor Signs One Bill Protecting Free Speech... And Another That Undermines It

from the i-guess-they-balance-out?!? dept

On Thursday, Governor Rick Scott of Florida signed 44 bills into law, but two of them are particularly interesting to us. The first we wrote about back in March, SB 604, is a very problematic bill that undermines some basic free speech rights. It's the latest in a new push by Hollywood to undermine anonymity online as a backdoor attack on copyright infringement. Basically, it says that if you're distributing any sort of audiovisual work, you need to reveal who you are.

The implications here are massive. There are lots of cases where someone may wish to post certain audiovisual works without having to post their full name, address, phone number and email address -- as the law now requires. And the First Amendment has long protected the right to be anonymous. And yet, the Florida legislature and Governor Scott signed it without much serious concern about how it's stripping away the First Amendment anonymity rights of their citizens.

Oddly, however, in that very same batch of signed bills... is another bill that protects free speech rights: SB 1312, which expands Florida's (very, very weak) anti-SLAPP law. Like too many states, Florida's anti-SLAPP law originally only protected people in cases where they were sued over speech concerning government actions. The new bill expands that to "public issues" which is similar to many other anti-SLAPP bills. Considering the number of crazy defamation threats and lawsuits that seem to come out of Florida, this bill could be very, very useful in protecting free speech.

Getting the anti-SLAPP bill is really important, but losing anonymity seems really dangerous. These aren't just the sort of things that "balance out" either. Either you support the First Amendment or you don't. I'm glad that Florida has a better anti-SLAPP bill, but Governor Scott shouldn't have taken away basic First Amendment protections with the same stroke of his pen in signing the "true origin" bill at the same time.

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Posted on Techdirt - 22 May 2015 @ 9:34am

FBI Director Claims That The World's Most Knowledgeable Cybersecurity Experts Are Not 'Fair Minded' About Encryption Backdoors

from the oh-really? dept

Earlier this week, we noted that a huge list of companies, non-profits and cybersecurity experts had signed a letter to the White House about the stupidity and danger of trying to order backdoors into encryption (disclaimer: we signed the letter as well). While many in the press focused on the companies that had signed onto the letter (including Google, Apple, Cisco, Microsoft, Twitter and Facebook), as we noted, what was much more interesting was the long list of cybersecurity/encryption experts who signed onto the letter. Just in case you don't feel like searching it out, I'll post the entire list of those experts after this post.

It's a who's who of the brightest minds in encryption and cryptography. Whitfield Diffie invented public key cryptography. Phil Zimmermann created PGP. Ron Rivest is the "R" in "RSA." Peter Neumann has been working on these issues for decades before I was even born. And many more on the list are just as impressive.

So how do you think FBI director James Comey -- who has been leading the charge on backdooring encryption -- responded to these experts?

By calling them uninformed.

I wish I was joking.

A group of tech companies and some prominent folks wrote a letter to the President yesterday that I frankly found depressing. Because their letter contains no acknowledgment that there are societal costs to universal encryption. Look, I recognize the challenges facing our tech companies. Competitive challenges, regulatory challenges overseas, all kinds of challenges. I recognize the benefits of encryption, but I think fair-minded people also have to recognize the costs associated with that. And I read this letter and I think, “Either these folks don’t see what I see or they’re not fair-minded.” And either one of those things is depressing to me. So I’ve just got to continue to have the conversation.
First of all, it's kind of hilarious for the FBI director to be arguing that the people who signed that letter haven't done a cost-benefit analysis, since we've noted that the intelligence and law enforcement communities almost never do such an analysis. They always insist "more surveillance" must be better, without considering the costs involved.

And then there's this, showing that Comey still doesn't understand the letter at all:
We’ve got to have a conversation long before the logic of strong encryption takes us to that place. And smart people, reasonable people will disagree mightily. Technical people will say it’s too hard. My reaction to that is: Really? Too hard? Too hard for the people we have in this country to figure something out? I’m not that pessimistic. I think we ought to have a conversation.
Hey, Comey! No one is saying it's "too hard." They're saying it's IMPOSSIBLE to do this without weakening everyone's security. Impossible. It's not a "hard" problem, it's an impossible problem. Because if you weaken security to let the FBI in, by definition you are weakening the security to let others in as well. That's the point that was being made.

And this is important. For all of the ridiculous claims by Comey and others that we need to "have a conversation" on this, we do not. A conversation is counterproductive. All of these people can and should be working on systems to make us all more safe and secure. But if they have to keep explaining to ignorant folks like Comey why this is a bad idea, then they are taken away from making us safer. You can have a discussion over things that are hard. But there is no point in having a discussion over things that are impossible.

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Posted on Techdirt - 22 May 2015 @ 8:27am

Why Is The Attorney General Making Claims About PATRIOT Act That Her Own Agency's Report Says Are Not True?

from the total-failure dept

We already posted about the new DOJ Inspector General report analyzing the FBI's use of the PATRIOT Act's Section 215 "business records" collection. Among the various things in the unredacted sections of the report is yet another claim (following on many similar statements) that the Section 215 program has never been shown to actually be that useful:

That wasn't all that interesting on its own, given how many times others (including many with the security clearance and access to know) have made the same point. But what's incredibly troubling is that the very same day that this report came out, Attorney General Loretta Lynch was making the rounds claiming the exact opposite.

Meanwhile, today Attorney General Loretta Lynch weighed in on the debate in Congress, claiming the exact opposite. She was quoted by CBS News as saying that if Patriot Act Section 215 expires: “[W]e lose important tools. I think that we lose the ability to intercept these communications, which have proven very important in cases that we have built in the past.” (emphasis mine)

So to sum up: the Justice Department’s own Inspector General said information collected under Section 215 did not lead to "any major case developments,” but the Attorney General said that Section 215 has “proven very important in cases that we have built.” Both statements cannot be true.

And, remember, the Attorney General is the head of the Justice Department. It certainly sounds like she's either woefully uninformed or outright lying. She is new at the job, but not so new that she wouldn't know these basic facts.

And, in some ways it gets even worse. As Patrick Eddington points out, Lynch appears to be directly calling for the continuation of a program that the 2nd Circuit appeals court just declared illegal. Doesn't that raise some fairly important questions, when you have the Attorney General -- the person officially in charge of enforcing our laws insisting that we need to continue an illegal program?

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Posted on Techdirt - 22 May 2015 @ 6:24am

Sony Uses Copyright To Force Verge To Takedown Its Copy Of Sony's Spotify Contract

from the censorship-through-copyright dept

Well, well. A few days ago, the Verge got a huge scoop in the form of Sony's original US contract with Spotify, leading to a ton of discussion (mostly focused around the huge "advances" that Spotify guaranteed Sony, and the related question of whether or not Sony actually passes those advances on to musicians). The debate raged on for a couple days, and late last night, Paul Resnikoff over at Digital Music News noticed something interesting: the original contract was now missing, and The Verge's own website claims it's due to a copyright threat from Sony:

On Twitter, the Verge's editor-in-chief Nilay Patel admits that a threat from Sony forced the site to take down the contract.
In fact, he claims that Sony actually sent four cease and desist letters claiming copyright infringement:
Earlier this week, Resnikoff reported that Spotify was apparently putting pressure on publications not to report on the contract, including "dangling threats" to scare them off. However, Spotify would have no copyright argument here. As the Verge report (still) notes, the contract was "written by Sony Music," meaning that if there's any copyright claim (we'll get to that shortly), it's held by Sony Music.

And we all know damn well that Sony loves to throw around bogus copyright threats. Even we have received one concerning reporting on Sony Pictures' leaked emails. Sony has threatened lots of other publications as well, and even Twitter over such leaks. And, Resnikoff notes that Sony Music threatened his site for an April Fool's joke, pretending to reveal internal emails concerning Sony's equity stake in Spotify.

So here's the question: why did Vox (the owner of the Verge) cave? For a modern media operation, it must have lawyers that know the threat is bullshit.

Yes, it is possible to get a copyright over the contract, but it's likely to be a pretty thin copyright, because the amount of "creative" work in the contract is minimal. Much of the contract is likely boilerplate. But, more importantly, the Verge has a slam dunk fair use case here. They're providing commentary on the contract. It's a matter of public interest. They're not "selling" the contract and they're certainly not harming the "market" for the contract itself, of which there is none.

We actually dealt with this issue once before -- two years ago when Apple pulled the same bullshit move to pull down a contract that Resnikoff himself had posted on Digital Music News. Somewhat ironically, the first party to report on that... was the Verge! And in their report, they quoted law professor Eric Goldman noting the ridiculousness of it:
"It's just kind of a jerk move. We all know what's happening here. Apple doesn't care about protecting the copyright of contracts. It's using copyright to try and suppress information that it doesn't want made public."
Sounds about right when applied to Sony in this case. Besides, all this is really doing is drawing much more attention (yet again) to the contract, on a story that had already started to die down.

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Posted on Techdirt - 21 May 2015 @ 9:10pm

Texas Can't Get Its Innovation Act Together: Fails To Pass Bills To Let Tesla & Uber Provide Service

from the corruption-index dept

Last year, we wrote about two key "corruption indicators" in city and state governments: they ban direct sales models to block Tesla from competing with traditional car companies and they ban Uber/Lyft style car hailing services to protect local taxi incumbents.

It appears that Texas is really trying to wave its anti-innovation flag as strongly as possible as the legislature down there failed to move forward on two key bills that would have made it possible for Tesla to do direct sales in Texas... and to stop local cities from blocking Uber & Lyft to favor taxi incumbents.

A Texas House deadline has come and gone, killing many top-priority bills for both parties — among them one that would allow Tesla-backed direct car sales and another to regulate ride-hailing companies. Midnight Thursday was the last chance for House bills to win initial, full-chamber approval. Since any proposal can be tacked onto other bills as amendments, no measure is completely dead until the legislative session ends June 1. But even with such resurrections, actually becoming state law now gets far tougher.

And, of course, this comes just after the FTC warned Michigan for its blocking of direct sales of cars like Tesla.

The failure to allow direct sales is a much bigger deal than the car hailing stuff, but both are bad. And the response from Texas politicians is really quite disgusting:
Rep. Senfronia Thompson — one of the House's most senior members currently serving her 20th term — said it was the company's own fault that the bill didn't pass.

"I can appreciate Tesla wanting to sell cars, but I think it would have been wiser if Mr. Tesla had sat down with the car dealers first," she said.
Really? In what world is it considered appropriate to force an innovative company that wants to go direct to consumers to first "sit down" with the gatekeepers that are trying to block them? "I can appreciate Amazon wanting to sell books to people, but I think it would have been wiser if Mr. Amazon had sat down with retail store builders first." "I can appreciate YouTube wanting to let anyone upload videos, but I think it would have been wiser if Mr. YouTube had sat down with TV producers first."

That's not how innovation works. At all. And thus, we can cross Texas off the list of innovative states.

The law around car hailing is not quite as big of a deal, but without the new Texas law, various cities within Texas can still create their own rules that would effectively make it impossible for such services to operate there. There are states that create spaces for innovation -- and then there are those that protect incumbents. Texas appears to be making it clear that it's the latter. If I were a startup in Austin, I might consider finding somewhere else to operate.

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Posted on Techdirt - 21 May 2015 @ 11:44am

WSJ Editorial Board So Clueless It Thinks That We're Now 'Rushing' Through A Surveillance Debate That's Been Going On For Two Years

from the a-rush? dept

As the Senate does its little song and dance today over surveillance reform, kudos to the Wall Street Journal's editorial board for producing what has to be one of the most ridiculous opinion pieces on this debate to date. It's called The Anti-Surveillance Rush, and its main argument is that the Senate shouldn't be "rushing" through this debate, and that it should instead simply do a clean extension of section 215 of the PATRIOT Act to allow for further debate. This is wrong and it's clueless. The WSJ editorial board can be nutty at times, but the level of cluelenssness displayed here really takes it to another level. Let's dig in.

The Senate is supposed to be the cooling saucer for political passions, but surveillance opponents want it to be a slip ’n slide instead: They want the Senate to accept wholesale revisions to counterterrorism programs with little if any debate before Congress skips town for vacation at the end of the week. We hope Senators show more respect for their institutional dignity.
Little if any debate? Are they serious? This round of debate started almost exactly two years ago when Ed Snowden revealed the extent of the phone metadata collection program under Section 215. There have been numerous hearings, tons of public debate, articles, books, movies and more discussing this very topic. To pretend that this is a last minute debate is simply ridiculous. As for the claim that these are "wholesale revisions," most everyone admits that the changes are really not that major, but rather a small step towards actually respecting the 4th Amendment, but without any real changes to overall capabilities.
The House jammed the Senate last week with a bill that passed 338-88 and remakes intelligence collection of metadata phone records. House leaders of both parties know that floor time is limited and that the legal authorities for metadata, roving wiretaps for people who move across the U.S. border, and several other programs lapse in June. So their ultimatum is either to wave through their bill or undermine national security.
Almost none of that is true. After all, there was a similar debate last year on a nearly identical bill, and there has been widespread discussion about this for months. The fact that Section 215 sunsets next week has been known since the last renewal, and all of Congress has had years to work on a new solution.

In fact, let's compare this to another piece from the WSJ editorial board two years ago, in which it celebrated Congress's decision to renew the FISA Amendments Act (which houses a similar surveillance program) with little to no debate at all. There, the WSJ was excited:
With scarcely any notice, much less controversy, they did at least preserve one of the country's most important post-9/11 antiterror tools.

[....]

In September the House passed the "clean" five-year extension that the White House desired, 301 to 118. The Senate reserved all of a single day of debate on the floor to coincide with the post-Christmas fiscal cliff chaos, and a broad bipartisan majority defeated multiple amendments from the civil liberties absolutists on the left and right such as Kentucky's Rand Paul.

The bill was then whistled through 73-23 and Mr. Obama signed it Sunday night with no public comment other than a one-sentence statement from the White House press secretary indicating that the bill had been signed. Meanwhile, the press corps was wigging out about Facebook's privacy settings.
So, as long as it's granting more power to spy on us, the WSJ is against public debate. When it's about limiting such spying, the WSJ whines about how there's not enough debate. Fascinating.

Back in 2012, the editorial board was so positive that the spying was overblown that it mocked those who had worried about these programs (this was just months before the Snowden revelations:
That would be wiretapping, which you may recall liberals portrayed during the George W. Bush era as an illegal and unconstitutional license for co-President Dick Cheney and his spymasters to bug the bedrooms of all U.S. citizens. But now Washington has renewed the 2008 amendments to the Foreign Intelligence Surveillance Act that were due to expire at the end of 2012, with no substantive changes and none of the pseudo-apoplexy that prevailed during the Bush Presidency.
Funny how it's tough to have "apoplexy" when all the details are kept secret. Of course, now we know how much spying was being done, Congress actually wants to fix it, and the WSJ can't have that.

Back to the present article. The House did not "jam" this to the Senate. This issue has been known about and discussed for months. And, basically no one -- not even within the intelligence community -- is arguing that this "undermines national security."
The better outcome would be a clean, temporary extension that allows the Senate sufficient time to consider the details and understand what it is doing.
Bullshit. This has been debated for two years. Everyone -- especially the Senate -- has known about the June 1st sunset since it was put in place during the last renewal. And they still waited until the last minute to do this song and dance. A temporary extension will mean that they'll wait until the last minute of that extension for a similar song and dance and the WSJ can publish another clueless editorial saying we need more time for debate again.

Who do they think they're fooling?
The USA Freedom Act, which the House Intelligence and Judiciary Committees negotiated with the White House, is a panicky political response to the Edward Snowden-inspired frenzy over surveillance
The Snowden leak on this program happened almost exactly two years ago. The USA Freedom Act has been discussed and debated for well over a year in various formats. How is this a "panicky political response"?
Supposedly government spooks are bugging your bedroom and reading your emails—though they aren’t—and politicians want to be able to say they did something about it.
Strawman alert. No one is actually claiming that. They're claiming -- truthfully -- that the NSA is engaged in bulk collection of phone records, a program that two separate review boards by the President found illegal and unconstitutional and the important Second Circuit appeals court found illegal last week as well. Does the WSJ editorial board believe its readers are too stupid to know this?
Yet bulk call log searches are an important analytic tool that aid terror investigations and prevent attacks.
This is simply not true. As has been pointed out multiple times, the intelligence community could not provide a single example where that was the case. The only example presented was how it was used to track down a cab driver in American who sent some money to a questionable group in Somalia. That's it. There is no evidence that it was important in any terror investigations or in preventing a single attack.

From there, the WSJ whines that since the USA Freedom Act leaves data collection to the telcos, all hell is going to break loose:
In the best scenario, this untested leap to replace a framework that has been useful in the 14 years since 9/11 will make intelligence more time-consuming and less efficient. Speed and agility matter in uncovering plots or safe houses. And how multiple databases that are likely to be less secure than the NSA’s will protect privacy is anyone’s guess.
The "less secure" line is a bullshit red herring -- because the telcos already keep this data, so nothing changes there. It's just that the data is not also being held by the NSA. Second, the idea that this new process is somehow more time-consuming and less efficient doesn't have any actual support. Telcos have already shown to be all too willing to work closely with intelligence agencies to give them near real-time access when necessary. That's not suddenly going to go away.
But the House bill also declines to define how long telecoms must retain metadata. A year, a month? Who knows? If Washington’s relationship with Silicon Valley grows more adversarial, service providers may conclude it is in their commercial interests to erase these records more or less in real time. In that case the NSA won’t be able to look for a needle because there won’t be a haystack.
First, this seems to confuse "telcos" with "Silicon Valley" when they're very different things. Second, this conflates a bunch of different issues and suggests near total ignorance on the part of whoever wrote this editorial. Many of the records that the NSA wants are the kinds of business records that these companies need to hold onto for some period of time, so the fear of "no logs" is kind of meaningless. But, even if it was true that companies started to flush their logs, so what? There is no requirement that all of our activities be tracked. Law enforcement made due in the past when not everyone was automatically tracked all the time. They can do so again.
Among the GOP presidential field, Marco Rubio has come out in favor of metadata, while Chris Christie gave a thoughtful speech Monday on intelligence and foreign affairs in Portsmouth, New Hampshire.
Thoughtful? The one where he says all civil liberties fears were "baloney" coming from "extremists"? Yeah, that wasn't thoughtful. That was bombastic bullshit from a surveillance state apologist. Remember, this program was just declared illegal (with a strong hint of not being Constitutional) by the 2nd Circuit appeals court. And the WSJ is defending it.
A rush to the exits is no way to conduct U.S. intelligence, or the affairs of Congress. If a majority of Senators really do want to disarm in the terror war, then they should defend their positions, listen to the other side, and be accountable for the results. Cramming such a major policy into law before a holiday weekend is a failure to treat national security with the seriousness it deserves.
No one is disarming anyone. They're just making sure that the NSA can't unconstitutionally scoop up every bit of metadata under what is an illegal general warrant. And there is no rush. Again, this debate has been two years in the making (or longer if people had actually listened to Senator Wyden). And if this debate deserves seriousness, it should at least start with the WSJ not totally misrepresenting the whole thing.

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Posted on Techdirt - 21 May 2015 @ 8:08am

Godzilla Sues The Godzilla Of Copyright Trolls, Voltage Pictures, For Copyright Infringement

from the and-appears-to-have-a-case dept

Every so often there are lawsuits where we note that both parties have a long history of doing the sort of thing that gets them written about on Techdirt in less-than-positive ways. Here's another one of those situations. Voltage Pictures is a well known copyright trolling firm, which is its side business along with producing some highly acclaimed movies. Voltage has gone on quite a rampage trying to shake down people all around the globe. The company's boss, Nicolas Chartier, tends to take a rather black and white view of the situation. Back when he first started shaking people down, someone sent him a friendly email noting (accurately) that going the copyright trolling route might hurt Voltage's reputation. Rather than considering the message, Chartier turned around and called the helpful emailer a "moron" and a "thief." This is someone who has quite a strong view on what he believes is his "property."

So it seems rather fascinating to hear that Toho is suing Voltage for copyright infringement, claiming that a new movie that it's producing, Colossal, infringes on its copyright on Godzilla. The movie was just announced last week, and the Hollywood Reporter described it this way:

In the movie — described as Transformers versus Adaptation and Godzilla meets Being John Malkovich; Hathaway will play Gloria, an ordinary woman who, after losing her job and her fiancé, decides to leave her life in New York to move back to her hometown.

But when news reports surface that a giant lizard is destroying the city of Tokyo, Gloria gradually comes to realize that she is strangely connected to these far-off events via the power of her mind. In order to prevent further destruction, Gloria needs to determine why her seemingly insignificant existence has such a colossal effect on the fate of the world.
Right. So, you can see why Toho might be mad, but Toho also has a long and storied history of suing basically anyone they think might be doing anything even loosely connected to Godzilla. It once went after Comcast for having a godzilla-like monster in a marketing campaign and a small mobile app firm for creating a silly game called Fingerzilla.

So... yeah. Two big firms with long histories of legal bullying/threatening/suing people that they feel are unfairly "stealing" their property, when both take a very ridiculous black and white view of what kind of "property" is being "stolen." Toho even makes note of Voltage's copyright troll history in the very opening of the lawsuit:
Godzilla is one of the most iconic fictional characters in the history of motion pictures. Toho Co., Ltd., the copyright owner of the Godzilla character and franchise of films, brings this lawsuit because defendants are brazenly producing, advertising, and selling an unauthorized Godzilla film of their own. There is nothing subtle about defendants’ conduct. They are expressly informing the entertainment community that they are making a Godzilla film and are using the Godzilla trademark and images of Toho’s protected character to generate interest in and to obtain financing for their project. That anyone would engage in such blatant infringement of another’s intellectual property is wrong enough. That defendants, who are known for zealously protecting their own copyrights, would do so is outrageous in the extreme
At the very least, Toho has a point that Voltage pictures is clearly making use of Godzilla in its description and promotion for the movie. From the lawsuit, here is the promotional email that Voltage itself sent out, which includes an image of Godzilla (Toho claims it's taken directly from a publicity photo of last year's Godzilla movie) and mentions Godzilla.
Toho further notes that the email sent around "director's notes" for the project which include a bunch of historical images of different representations of Godzilla.
The Director’s Notes also make clear that Defendants have not only taken the Godzilla Character as their own, but that they also intend to use the Godzilla Character in precisely the same way that Toho used the character in its initial film – attacking Tokyo. As stated therein, “[W]e need scenes with the monsters crushing Tokyo. .
Not only that, but Toho notes that, last year, the director in question, Nacho Vigalondo, stated that he's absolutely planning to make a "cheap" Godzilla film:
The script I finished and want to get financing for is a twist on the kaiju eiga genre, the Godzilla genre. It’s going to be the cheapest Godzilla movie ever, I promise. It’s going to be a serious Godzilla movie but I’ve got an idea that’s going to make it so cheap that you will feel betrayed. You’re going to be so frustrated by it, it’s not even possible.

The way I wrote the movie – and I don’t want to explain too much – I found a way that is honest and logical to make Godzilla in a costume, destroying cities, models all the time. I wrote the movie in a way that the story has a twist so it makes sense to do Godzilla this way and I’m going to try to be the guy inside the costume because I love filmmaking to the core and I’m a film lover, one of dreams is not to direct a Godzilla movie but to be inside the costume and destroy the cities. I want to be the guy in the costume.
When I first saw the headlines about this, I thought it might be another case of Toho stretching its claims of infringement, as it has done in the past -- and was prepared to argue that, even in all its copyright trolling insanity, that Voltage Pictures should have the right to make its own type of monster movie. In fact, we've defended Voltage against ridiculous legal attacks in the past.

And, further, I think that it's ridiculous that courts have decided that using similar characters in totally different settings is copyright infringement, as it seems to go against the idea/expression dichotomy that is supposed to be a core tenet of copyright law. But, it's still kind of jarring just how blatant Voltage appears to be in just making use of Godzilla in the pitch for this movie without a license. And for a company whose boss argues that merely saying that his copyright trolling plan could be bad for business makes you a "thief," I think it's at least fair to argue that Nicolas Chartier is one hell of a hypocrite.

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Posted on Techdirt - 20 May 2015 @ 9:01pm

Faith Healer Adam Miller Drops His Lawsuit (For Now) After Being Widely Mocked Online

from the can-beings-of-light-cure-a-streisand? dept

A couple weeks ago, we wrote about faith healer Adam Miller's monumentally stupid and ridiculous SLAPP lawsuit against Stephanie Guttormson because she posted a video that was critical of a video Miller put together promoting his faith healing nonsense. We dissected how weak and laughable the lawsuit was -- and it's possible that Miller and his lawyer have now realized this, as they've dismissed the lawsuit, but without prejudice, meaning he could potentially file it again in the future. Given that (and the fact that Guttormson has raised a bunch of money in a crowdfunding campaign), I wonder if she'll now file for a declaratory judgment of non-infringement... Update: Guttormson notes that while she could go after him, she's going to let the matter drop.

Either way, Miller said he filed the lawsuit because he felt it was unfair that people were seeing this video that Guttormson put together:

When he filed the original lawsuit, it noted that the video had been viewed approximately 1,500 times since it first was posted back in December of last year. So, 1,500 views in a bit over four months. In the two weeks since the lawsuit was filed, it's now up to about 50,000 views. Nice work, Adam.

Separately, if you do a Google search on "adam miller healer" (as he likes to be known), it's full of stories about how he's suing Guttmorson and mocking his faith healing nonsense. One of these days people are going to understand the nature of the Streisand Effect, but apparently that day is not today.

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Posted on Techdirt - 20 May 2015 @ 12:47pm

Secretary Of State: We Must Have A Secure Internet; Homeland Security Secretary: A Secure Internet Makes Us All Less Safe

from the watch-out-for-the-buts dept

Secretary of State John Kerry gave a speech in South Korea this week about the importance of an "open and secure internet." Of course, that sounds a little hypocritical coming from the very same government that is actively working to undermine encryption, so it seems worth contrasting it with comments made from Secretary of Homeland Security Jeh Johnson, in which he whines about a secure internet making things better for terrorists. Kerry's speech is mostly good (with some caveats that we'll get to), in talking about the importance of not freaking out over moral panics and FUD:

Freedom. The United States believes strongly in freedom – in freedom of expression, freedom of association, freedom of choice. But particularly, this is important with respect to freedom of expression, and you believe in that freedom of expression here in Korea. We want that right for ourselves and we want that right for others even if we don’t agree always with the views that others express. We understand that freedom of expression is not a license to incite imminent violence. It’s not a license to commit fraud. It’s not a license to indulge in libel, or sexually exploit children. No. But we do know that some governments will use any excuse that they can find to silence their critics and that those governments have responded to the rise of the internet by stepping up their own efforts to control what people read, see, write, and say.

This is truly a point of separation in our era – now, in the 21st century. It’s a point of separation between governments that want the internet to serve their citizens and those who seek to use or restrict access to the internet in order to control their citizens.
That sounds good... until you compare it to Kerry's cabinet partner Johnson, who was doing exactly what Kerry said governments should not do:
“We are concerned that with deeper and deeper encryption, the demands of the marketplace for greater cybersecurity, deeper encryption in basic communications,” Johnson said on MSNBC’s “Morning Joe” on Friday. “It is making it harder for the FBI and state and local law enforcement to track crime, to track potential terrorist activity.”
Let's not even bother with the question of just what is "deeper and deeper encryption" or why we should have someone who clearly doesn't understand encryption in charge of Homeland Security. But it seems clear that Kerry and Johnson's views here are quite different. Kerry is saying that "governments will use any excuse they can" including bogus claims about "terrorism" and "criminals" -- and yet that's exactly what Johnson is doing.

Of course, later in his speech, Kerry starts enumerating a similar list for any country to use, should they want to control speech as well:
First, no country should conduct or knowingly support online activity that intentionally damages or impedes the use of another country’s critical infrastructure. Second, no country should seek either to prevent emergency teams from responding to a cybersecurity incident, or allow its own teams to cause harm. Third, no country should conduct or support cyber-enabled theft of intellectual property, trade secrets, or other confidential business information for commercial gain. Fourth, every country should mitigate malicious cyber activity emanating from its soil, and they should do so in a transparent, accountable and cooperative way. And fifth, every country should do what it can to help states that are victimized by a cyberattack.
In other words, here are the guidelines for any other countries to attack freedom of expression and openness online. Just claim it violates one of the list above and the US can't complain. We've certainly seen it happen before. DDoS attacks launched based on claims that it's in "response" to a hacking attempt. Or Russia cracking down on dissidents by arguing that they must be infringing on copyright law.

Kerry's statement is the kind of thing that very few people would argue against. It seems obvious: of course we don't want attacks on critical infrastructure (though, the government likes to define "critical infrastructure" in a manner that best serves its own needs), or corporate espionage. But Kerry defines things in such a broad manner (including the bogus use of "theft" for "intellectual property") that it leaves the US wide open to abuse. Kerry was right at the beginning in arguing that governments will use any means necessary, so why give them this kind of opening? As we've seen for years, when the US beat up on China for not respecting our patents, China eventually "turned things around" by focusing on figuring out ways to use patents to block American companies from beating local Chinese firms in its market.

This isn't arguing that cyberattacks or infringement of intellectual property are good things -- just that giving foreign nations a "open internet, but..." allows them to make use of the "but..." portion to do all sorts of horrible things that suppress dissent and free expression, and then argue that they had to do it, because the US told them to do so. And, of course, it's not just foreign governments, but as Johnson's comments make clear, those at home as well. None of this means to encourage bad or illegal behavior online -- but to recognize that pushing for internet freedom means actually pushing for internet freedom, which is difficult to do when you immediately encumber it with your own set of conditions, and your colleagues are undermining the very foundation of a secure internet.

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Posted on Techdirt - 20 May 2015 @ 11:46am

Appeals Court Rightly Overturns NAACP's Successful Attempt To Censor Speech Via Trademark Law

from the free-speech-matters dept

Last fall, we wrote about a troubling decision in a district court that ruled that the NAACP could use trademark law to censor a vocal critic who had written a mocking online article calling the NAACP the "National Association for the Abortion of Colored People" as part of an anti-abortion campaign. The NAACP sent the organization that posted the story, the Radiance Foundation (and the author/owner of Radiance, Ryan Bomberger), a legal threat letter. In response, Radiance filed for declaratory judgment that it did not infringe on the NAACP's trademarks, and the NAACP countersued arguing trademark infringement. The lower court sided with the NAACP, and barred Bomberger/Radiance from using the fake NAACP name to mock the group.

No matter how you feel about the NAACP or abortion, the idea that it would use trademark law to silence a critic is highly questionable. Remember, the purpose of trademark law is to protect consumers from confusion in commercial settings. But, as with copyright, many seek to use it as a crude censorship tool -- and here, it worked. At first. Thankfully, the Fourth Circuit has overturned that ruling noting the total lack of actual trademark infringing, and hinting at (though leaving aside) the serious First Amendment concerns. The court here notes that to interpret trademark law the way the NAACP requests would lead to plenty of suppressed speech that has nothing to do with the true purpose of trademark law:

The NAACP urges us to give this requirement a “broad construction,” Appellee’s Br. at 18, but that construction would expose to liability a wide array of noncommercial expressive and charitable activities. Such an interpretation would push the Lanham Act close against a First Amendment wall, which is incompatible with the statute’s purpose and stretches the text beyond its breaking point. We decline to reach so far.
From there, the court rightly worries about what would happen if it accepted the NAACP's interpretation of trademark law:
The danger of allowing the “in connection with” element to suck in speech on political and social issues through some strained or tangential association with a commercial or transactional activity should thus be evident. Courts have uniformly understood that imposing liability under the Lanham Act for such speech is rife with the First Amendment problems.
The court then details where the lower court went wrong. The lower court claimed that because Radiance sought donations in its sidebar, that made the article "use in commerce." But the appeals court points out that this is ridiculous and would "neuter the First Amendment."
That ruling, however, neuters the First Amendment....

Suffice it to say that the specific use of the marks at issue here was too attenuated from the donation solicitation and the billboard campaign to support Lanham Act liability. Although present on the article page, the Donate button was off to the side and did not itself use the NAACP’s marks in any way. The billboard campaign was displayed on a different page altogether. A visitor likely would not perceive the use of the NAACP’s marks in the article as being in connection with those transactional components of the website. It is important not to lose perspective. The article was just one piece of each Radiance website’s content, which was comprised of articles, videos, and multimedia advocacy materials. That the protected marks appear somewhere in the content of a website that includes transactional components is not alone enough to satisfy the “in connection with” element. To say it was would come too close to an absolute rule that any social issues commentary with any transactional component in the neighborhood enhanced the commentator’s risk of Lanham Act liability.
And thus, the court notes that merely writing an article that mocks the NAACP is not really "use in commerce" for the sake of trademark law. From there, the court also takes on the "likelihood of confusion" question, and finds no such likelihood exists. And, again, the court notes (correctly) that getting this test wrong could have First Amendment implications:
Indeed, criticism or parody of a mark holder would be difficult indeed without using the mark.... Trademark protections exist neither to allow companies to protect themselves from criticism nor to permit them to “control language.” .... Even some amount of “actual confusion” must still be weighed against the interest in a less fettered marketplace of social issues speech.
And, in this case, the lower court was itself quite confused... over the basics of trademark law. First, it notes, it doesn't matter if Radiance's usage confused people into thinking that the NAACP supported abortion -- as that's not what trademark law is about:
Likewise, trademark infringement is not designed to protect mark holders from consumer confusion about their positions on political or social issues. The evidence of “actual confusion” relied on by the district court consisted of phone calls to the NAACP by people who took issue with the NAACP supporting abortion. Radiance Found.... “[I]ndignation is not confusion,” ... at least not as pertains to trademark infringement, and at best the calls demonstrated confusion as to the NAACP’s policy positions rather than any good or service. Policy stances are neither goods nor services, though the means of conveying them may be.
And from there we get to the key point. If the NAACP's position here were accepted, it would create serious problems that would come back around to likely haunt the NAACP itself:
Political discourse is the grist of the mill in the marketplace of ideas. It may be that the only -- but also the best -- remedy available to a trademark holder is to engage in responsive speech. For even where a speaker lies, “more accurate information will normally counteract the lie.”... The NAACP is a renowned civil rights organization with numerous mechanisms for connecting with its membership and the public. Organizations of its size and stature possess megaphones all their own. “Actual confusion” as to a nonprofit’s mission, tenets, and beliefs is commonplace, but that does not transform the Lanham Act into an instrument for chilling or silencing the speech of those who disagree with or misunderstand a mark holder’s positions or views.
On top of that, the court is perplexed as to how the lower court could possibly find a likelihood of confusion as to the source of the mocking article, considering that it was clearly mocking the NAACP, rather than coming from it:
It is not immediately apparent how someone would confuse an article which is strongly critical of an organization with the organization itself. The mark in this case was used primarily to identify the NAACP as the object of Radiance’s criticism, resembling a descriptive or nominative fair use albeit by employing a modified version of the name. Admittedly, the attention span on the Internet may not be long, but the briefest familiarity with the article would quickly create the impression the author was no friend of the NAACP. Indeed, in just the first two lines, the piece refers to the NAACP as an “out-of-touch liberal organization” and accuses its Image Awards of honoring “black imagery churned out by often racist, anti-Christian, perpetually sexist, violent and pornographic Hollywood.”
In short, being mean doesn't mean a likelihood of confusion:
Intemperate and worse as the commentary is, holding it actionable risks creating the paradox that criticism equals confusion, thereby permitting companies to shield themselves from adverse assessments.
It's disappointing that an organization that so relies on free speech decided to attack it in this case. While the court avoids having to take a First Amendment position, it's clear that the First Amendment is lingering behind the entire ruling:
Trademark law in general and dilution in particular are not proper vehicles for combatting speech with which one does not agree. Trademarks do not give their holders under the rubric of dilution the rights to stymie criticism. Criticism of large and powerful entities in particular is vital to the democratic function. Under appellee’s view, many social commentators and websites would find themselves victims of litigation aimed at silencing or altering their message, because, as noted, “it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference or any other such purpose without using the mark.” ...The article in this case was harsh. But that did not forfeit its author’s First Amendment liberties. The most scathing speech and the most disputable commentary are also the ones most likely to draw their intended targets’ ire and thereby attract Lanham Act litigation. It is for this reason that law does not leave such speech without protection.
It's only unfortunate that the case even had to go this far, and that the district court got it so wrong the first time around.

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Posted on Techdirt - 20 May 2015 @ 10:42am

Finding And Responding To The Media's Favorite Ridiculous And Misleading Free Speech Tropes

from the join-the-fun dept

A few years ago, Ken "Popehat" White put together a very important and useful post that completely dismantled the old trope that "free speech doesn't mean you can shout fire in a crowded theater." That line, of course, is so frequently used by those who seek to eliminate freedom of expression, and it's problematic beyond just for that reason: it's also wrong. The Popehat post is a really useful way to respond to anyone who makes that argument. A few months ago, the free speech group FIRE (yes the name is important in this context) put up a similarly useful post. And, as we mentioned last week, just recently Andy Sellars put together a great list of all the many times you actually can shout fire in a crowded theater (it's a long list).

Either way, while the "fire in a crowded theater" may be the most overused anti-free speech trope, it is hardly the only one. Thus, Ken White is back with another important post detailing that and many other such tropes, especially as they're used in the media. And, importantly, he presents examples of them each being used, explains why they're wrong, and suggests how to counter the arguments. You should read the whole thing, but here are just a couple of the tropes listed:

Trope One: "Hate Speech"

Example: "hate speech is excluded from protection. dont [sic] just say you love the constitution . . . read it." CNN Anchor Chris Cuomo, on Twitter, February 6, 2015.
Example: "I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would." Edward Schumacher-Matos, NPR, February 6, 2015.

In the United States, "hate speech" is an argumentative rhetorical category, not a legal one.

"Hate speech" means many things to many Americans. There's no widely accepted legal definition in American law. More importantly, as Professor Eugene Volokh explains conclusively, there is no "hate speech" exception to the First Amendment. Americans are free to impose social consequences on ugly speech, but the government is not free to impose official sanctions upon it. In other words, even if the phrase "hate speech" had a recognized legal definition, it would still not carry legal consequences.

This is not a close or ambiguous question of law.

When the media frames a free speech story as an inquiry into whether something is "hate speech," it's asking a question of morals or taste poorly disguised as a question of law. It's the equivalent of asking "is this speech rude?"



[.....]

Trope Five: "Balancing free speech and [social value]"

Example: "The incident raised heated questions about race relations — and how to balance free speech with protection from discrimination and harassment." Washington Post, March 3, 2015.

The media's love of "balancing" stories is a variation on its love of "line between" stories, only more misleading.

"Balancing," when used as a colloquial description of how courts decide whether speech is protected, is almost always wrong. American courts don't weigh the value of speech against the harm it does. When speech falls into an established exception to the First Amendment, as discussed above, no balancing is necessary; it can be restricted. When it doesn't, balancing of its "value" against other interests is almost always prohibited. As the Supreme Court recently said in rejecting the government's request to create new categories of unprotected speech through balancing:

The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document "prescribing limits, and declaring that those limits may be passed at pleasure." Marbury v. Madison, 1 Cranch 137, 178 (1803).

Courts occasionally engage in something that faintly resembles "balancing" when they apply different levels of scrutiny to speech restrictions. For instance, the Supreme Court said that Congress could prohibit the burning of draft cards because the government had a substantial interest in the draft system and the law was narrowly addressed to that legitimate interest, and aimed only at the non-communicative element of the conduct (destroying the card) and not the communicative aspect (doing so to protest the draft). But that analysis doesn't purport to assign a value to the speech. It considers only whether the government has a sufficiently compelling interest in its goal. Moreover, there's very good reason to doubt that the Supreme Court would ever approve a speech restriction that is content-based — that is, premised on dislike of the speech — no matter how strong the government's interest. The Court has repeatedly rejected calls to do just that, and a focus on the content of disfavored speech (when it's not within an established exception) is almost certainly fatal to the proposed restriction.

White tells me he hopes to keep this post updated with new tropes, new examples and new explanations, so help out by heading over to his site and submitting more examples of tropes, and let's help Popehat create the definitive list of such tropes that can then be used to shame the media away from continuing to use these tropes every time they feel like chopping away at the First Amendment.

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